I     LIBRARY 

'r  OF 
)         \ 


UNIVERSAL  CLASSICS 
LIBRARY 


<-*- 

ILLUSTRATED 

WITH  PHOTOGRAVURES 

ON  JAPAN  VELLUM 

HAND  PAINTED 

REPRODUCTIONS 

AND  FULL  PAGE 

PORTRAITS 

OF 
AUTHORS 


n  WALTER  DUNNE. 
*  PUBLISHER 

NEW  YORK  AND  LONDON 


COPYRIGHT,   1901, 

BY 

M.  WALTER    DUNNE, 
PUBLISHER 


GENERAL     PREFACE 


THE  LIBRARY  OF  UNIVERSAL  CLASSICS  AND 
RARE  MANUSCRIPTS,  twenty  volumes  are 
devoted  to  the  various  branches  of  Govern- 
ment, Philosophy,  Law,  Ethics,  English  and 
French  Belles  Lettres,  Hebraic,  Ottoman, 
and  Arabian  Literature,  and  one  to  a  col- 
lection of  150  reproductions,  bound  in  Eng- 
lish vellum,  of  the  autographs,  papers  and 
letters  of  Rulers,  Statesmen,  Poets,  Artists 
and  Celebrities  ranging  through  three  cen- 
turies, crowned  by  an  illuminated  facsimile 
of  that  historic  Document,  the  Magna  Carta. 
The  series  in  itself  is  an  epitome  of  the 
best  in  History,  Philosophy  and  Literature. 
The  great  writers  of  past  ages  are  accessi- 
ble to  readers  in  general  solely  through 
translations.  It  was,  therefore,  necessary  that 
translations  of  such  rare  Classics  as  are  em- 
bodied in  this  series  should  be  of  the  best, 
and  should  possess  exactitude  in  text  and 
supreme  faithfulness  in  rendering  the  au- 
thor's thought.  Under  the  vigilant  scholar- 
ship of  the  Editoral  Council  this  has  been 
accomplished  with  unvarying  excellence. 
The  classification,  selection  and  editing  of 
the  various  volumes  have  been  the  sub- 

(i) 


ii  THE   UNIVERSAL   CLASSICS 

ject  of  much  earnest  thought  and  consultation  on  the 
part  of  more  than  twenty  of  the  best  known  scholars  of 
the  day. 

The  Universities  of  Yale,  Washington,  Cornell,  Chi- 
cago, Pennsylvania,  Columbia,  London,  Toronto  and 
Edinburgh  are  all  represented  among  the  contributors, 
the  writers  of  special  introductions,  or  upon  the  consult- 
ing staff,  the  latter  including  the  Presidents  of  five  of 
the  Universities  mentioned.  Among  others  who  contrib- 
ute special  essays  upon  given  subjects  may  be  mentioned 
the  late  Librarian  of  the  British  Museum,  Dr.  Richard 
Garnett,  who  furnishes  the  essay  introducing  ' '  Evelyn's 
Diary."  From  the  Librarian  of  the  National  Library  of 
France,  L6on  Vall6e,  comes  the  fascinating  introduction 
to  the  celebrated  "Memoirs  of  the  Due  de  Saint-Simon." 
The  scholarly  minister  to  Switzerland  (late  First  Assist- 
ant Secretary  of  State),  Dr.  David  J.  Hill,  lent  his  wide 
reading  to  the  brilliant  and  luminous  essay  that  pre- 
cedes the  ' '  Rights  of  War  and  Peace. "  The  resources 
of  the  Congressional  Library  at  Washington,  as  well  as  of 
foreign  libraries,  have  all  been  drawn  upon  in  the  gigan- 
tic task  of  compressing  into  the  somewhat  narrow  limits 
of  twenty  volumes  all  that  was  highest,  best,  most  en- 
during and  useful  in  the  various  ramifications  of  litera- 
ture at  large. 

The  first  section  of  the  Library  is  devoted  entirely  to 
the  manuscript  reproductions  of  the  autographs  of  cele- 
brated men  in  all  ranks  and  phases  of  life,  covering  a 
period  of  three  centuries.  They  are,  in  fact,  the  Ameri- 
can edition  of  the  reproduction  of  rare  and  celebrated 
autographs  drawn  from  the  British  Museum  that  was 
issued  in  England  under  the  editorship  of  the  Assistant 
Keeper  of  the  Manuscripts.  They  afford  an  opportunity 
to  the  inquiring  reader  to  study  the  characters  of  Rulers, 
Statesmen,  Writers,  and  Artists  through  the  medium  of 
their  chirography. 

It  has  long  been  recognized  that  character  is  trace- 
able through  handwriting.  So  it  is  interesting  to  discern 


GENERAL   PREFACE  iii 

in  the  characters  traced  by  Henry  VIII  the  hardened,  sen- 
sual and  selfish  character  of  that  autocrat  and  polygamist ; 
in  the  writing  of  Thomas  Wolsey,  those  crafty  traits  com- 
bined with  perseverance  and  mock  humility  which 
raised  him  wellnigh  to  supremacy  in  the  realm  and  led 
him  finally  to  a  downfall  more  complete  than  any  we 
read  of  in  EngHsh  history;  and  in  that  of  Charles  V,  of 
Spain,  the  hard-headed  continence  of  character  and  su- 
perb common  sense  which  enabled  him  at  the  height  of 
glory  to  retire  to  a  monastery  while  yet  there  was  "day- 
light in  life,"  as  he  expressed  it,  "for  the  making  of  his 
soul."  Apart  from  the  historical  interest  of  these  Docu- 
ments, this  study  of  character  as  revealed  in  them  will 
prove  fascinating  to  thinking  minds. 

The  Magna  Carta,  greatest  of  all  historical  char- 
ters wrung  from  the  various  kings  of  England  from 
Henry  I  downward,  was  granted  by  King  John  at  the 
pressing  instance  of  the  Barons  and  Commons  of  England 
toward  the  end  of  his  ill-judged  and  unfortunate  reign. 
Of  this  Document,  celebrated  and  historic  as  it  is,  but 
little  is  known  at  large.  Although  Blackstone  and  other 
prominent  lawyers  have  written  upon  it,  information 
about  it  is  hard  to  obtain.  No  reproduction  of  the  orig- 
inal Document  has  ever  been  offered  to  American  col- 
lectors. This  facsimile  is  illuminated  in  colors  with  the 
shields  of  many  of  the  Peers  who  compelled  King  John 
to  accede  to  their  demands  for  civil  and  religious  liberty. 
The  original  charter  was  signed  at  a  place  called  Runny- 
mede  (the  Council  Meadow)  a  spot  between  Windsor  and 
Staines,  on  the  i5th  of  June,  1215,  about  a  year  before 
the  death  of  John.  It  practically  guaranteed  to  the  Com- 
mons of  England  all  the  civil  and  religious  rights  they 
enjoy  to-day.  It  dealt  with  testamentary  law  as  well,  se- 
curing to  widows  all  the  legal  rights  which  they  to-day 
possess.  It  dealt  with  the  rights  of  accused  persons ;  with 
military  service;  with  feudal  tenure;  with  taxation,  and 
it  limited  the  heretofore  autocratic  power  of  the  King  to 
an  extent  unknown  before  in  the  history  of  the  world. 


iv  THE    UNIVERSAL   CLASSICS 

If    we  except  the    Declaration  of   Independence,  it  is  the 
most  interesting  historical  record  of  all  time. 

The  Second  Section  of  the  Library  (ten  volumes)  is 
devoted  to  the  presentation  of  Government,  Philosophy, 
Law  and  Ethics.  This  section  embraces  such  names  as 
Grotius,  Plato,  Sir  George  Cornewall  Lewis,  Adam  Smith, 
Hamilton,  Madison,  Jay,  Walter  Bagehot,  Spinoza,  Schop- 
enhauer, Machiavelli,  as  well  as  those  builders  of  Ideal 
Governments,  More,  Bacon,  Campanella  and  Rousseau. 

Of  all  benefactors  in  Literature  of  the  human  race, 
Grotius  may  perhaps  rank  as  first  among  his  equals. 
Centuries  have  borne  witness  to  the  justness  of  his  pre- 
mises and  the  wisdom  of  his  conclusions.  The  princi- 
ples of  national  law  laid  down  by  him  are  to-day  accepted 
as  the  axioms  of  the  Science.  Among  the  nations,  perhaps 
the  United  States  is  most  deeply  interested  in  the  right 
administration  of  the  principles  affirmed  by  Grotius  in 
his  gigantic  work  on  the  "Rights  of  War  and  Peace," 
and  it  was  therefore  most  fitting,  when  the  recent  peace 
conference  at  The  Hague  completed  the  great  structure  of 
international  comity,  the  foundations  of  which  were  laid  by 
Grotius  in  1625,  that  a  silver  wreath  was  laid  by  the 
representative  of  the  United  States  upon  the  grave  of 
the  man  to  whom  the  Conference  owed  its  initial  impulse, 
although  at  a  distance  in  time  of  nearly  three  centuries. 

When  the  Publisher  determined,  under  the  advice  of  his 
Editorial  Council,  to  publish  Grotius,  he  found  that  only 
two  volumes  of  the  first  edition  were  available  in  the 
Library  of  Congress.  At  much  expense  and  trouble,  he 
instituted  a  search  in  Europe  and  finally  obtained  the 
missing  volume,  which  he  presented  to  the  Congressional 
Library,  where  it  now  is. 

Sir  George  Cornewall  Lewis's  "Government  of  Depend- 
encies "  is  characterized  by  the  accuracy  of  its  information 
It  is  a  reliable  text  book  for  the  guidance  of  any  nation 
in  the  treatment  of  its  dependencies  and  colonies.  It  is 
a  Classic  that  will  survive  as  long  as  colonization  re- 
jnains  to  be  done,  and  it  is  remarkable  that  although  it 


GENERAL   PREFACE  v 

was  published  for  the  first  time  sixty  years  ago,  the  illus- 
trations afforded  by  the  last  two  generations  support  the 
justice  of  its  principles  and  the  exactness  of  its  deduc- 
tions. 

Adam  Smith's  "Essay  on  Colonies "  presents  an  intro- 
ductory view  of  the  principles  governing  colonial  policy. 
It  is  a  fitting  work  to  go  hand  in  hand  with  the  greater 
one  of  Sir  George  Cornewall  Lewis.  It  is  of  practical 
use  to  American  Statesmen,  since  the  United  States 
seems  at  present  to  be  entering  upon  a  world-wide  colo- 
nial policy.  Its  practical  wisdom,  which  has  made  it  a 
Classic  for  all  times,  finds  a  special  applicability  in  the  con- 
ditions of  today,  for  Adam  Smith  was  a  theorist  in  the 
best  sense  of  the  word,  that  is  to  say,  he  was  a  man 
whose  breadth  of  view,  instead  of  unfitting  him  for  prac- 
tical details,  enabled  him  to  deduce  from  the  lessons  of 
history  and  experience  the  right  solutions  for  the  prob- 
lems of  Colonial  policy. 

Plato's  "Republic"  and  "Statesman"  must  be  regarded 
to-day  not  merely  as  historical  records  of  a  by-gone 
philosophy,  but  as  living,  teaching  dissertations  upon 
theories  which  cannot  fail  to  awaken  in  studious  minds 
the  highest  ideals  of  life  and  government.  Modern 
problems  stated  in  the  light  of  Plato's  philosophy,  as  it 
is  expressed  in  these  books,  will  find  readier  solutions 
when  examined  in  the  light  of  its  principles.  No  student 
of  sociology,  of  politics,  national  and  municipal,  or  of 
government  in  all  its  many-sided  aspects,  can  afford  to 
be  without  a  knowledge  of  these  immortal  discourses. 

Goldwin  Smith  has  declared  that  of  all  expositions  of 
constitutional  Government,  "The  Federalist"  ranks  the 
highest.  When  Hamilton,  Madison,  and  Jay  first  conceived 
the  idea  of  printing  in  the  common  tongue  their  ideas  upon 
the  principles  of  free  government,  they  unwittingly  laid  the 
foundations  of  the  best  commentary  on  the  principles 
of  popular  government  ever  written.  Political  science 
owes  to  them  the  most  important  contribution  to  its  lit- 
erature made  since  its  birth.  The  Essays  are  equally  ad- 


vi  THE   UNIVERSAL   CLASSICS 

mirable  for  sagacity,  simplicity,  and  patriotism,  and  while 
The  Federalist  will  never  be  read  for  pleasure,  it  con- 
tains a  mine  of  wisdom  for  the  student  and  the  constitu- 
tional lawyer,  and  as  a  text  book  of  political  science  is 
without  a  parallel. 

When  Bagehot  issued  his  work  on  the  English  Con- 
stitution, it  was  hailed  by  the  critics  as  the  most  won- 
derful and  philosophical  dissertation  on  the  subject  in 
any  language  or  from  any  pen.  John  Stuart  Mill  used 
to  say  that  of  all  great  subjects  much  remained  to  be 
written,  and  that  especially  was  this  true  of  the  English 
Constitution.  Bagehot's  work,  although  affording  the 
conclusion  that  monarchy  in  England  exists  as  a  logical 
necessity,  is  so  unbiased  in  its  premises,  so  logical  and 
clear  in  its  deductions,  that  this  manifest  fairness,  al- 
though leading  one  to  conclusions  distasteful  to  a  repub- 
lican mind,  must  endear  him  to  his  readers.  Dealing 
with  a  subject  somewhat  dry  in  its  details,  he  invests 
inanimate  objects  with  so  much  light  that  they  become 
realities.  In  the  highest  sense  he  combines  popularity 
and  scholarship. 

Spinoza's  philosophy  may  be  traced  both  to  the  in- 
fluence of  Bacon,  his  predecessor,  and  to  Descartes,  his 
contemporary.  Its  combination  of  positivism  with  the 
enthusiasm  of  piety  characterizes  his  philosophy  as  unique 
in  itself,  for  while  treating  man  from  a  purely  mechan- 
ical standpoint,  it  asserts  that  the  mechanism  itself  is  en- 
tirely divine.  Spinoza  was  a  voluntary  martyr  in  the 
cause  of  Free  Thought.  He  was  at  the  same  time  both 
Pantheist  and  Monist,  yet  sincere  in  his  devotion  to  na- 
ture and  the  God  of  nature.  His  religion  naturally  made 
him  a  Monist,  while  his  philosophy  led  him  to  express 
the  Pantheism  that  the  lover  of  God  in  Nature  cannot 
avoid.  While  he  renounced  his  Judaism  and  entered  the 
ranks  of  the  Christian  philosophers,  he  never  received 
baptism.  He  may  be  ranked  among  the  greatest  of  the 
German  mystics,  whose  work  had  such  profound  influence 
upon  the  dogmatic  Christianity  of  a  later  day.  The  epi- 


GENERAL   PREFACE  vii 

thet  conferred  on  him,  namely,  "God-intoxicated," 
summarizes  his  whole  attitude  and  the  character  of  his 
philosophy  better  than  any  lengthy  dissertation. 

When  Schopenhauer  began  to  write,  he  declared  him- 
self a  true  disciple  of  Kant,  but  he  modifies  and  adapts 
Kant's  "Critique  of  Pure  Reason"  to  such  an  extent 
that  he  reaches  the  attitude  of  opposition.  This  atti- 
tude he  manifests  throughout  all  his  writings.  He 
is  truly  an  Apostle  of  Protest,  but  in  spite  of  his 
positivist  contradictions  and  his  materialistic  pantheism, 
he  opens  up  a  mine  of  suggestions  to  the  literary  and 
philosophical  student.  In  spite  of  the  apparent  tragedy 
due  to  the  conflict  within  him,  we  cannot  help  gather- 
ing from  Schopenhauer  an  immensity  of  what  is  true, 
what  is  good  and  what  is  excellent.  One  thing  espe- 
cially noticeable  about  his  writings  is  that  while 
German  philosophers  are  often  ponderous  and  in  fact 
nebulous,  Schopenhauer  is  always  clear,  original,  and 
readable. 

To  Machiavelli  belongs  by  acclaim  the  honor  of  hav- 
ing written  the  ideal  biography  of  a  State.  His  clear, 
straightforward,  concise  statement  of  conditions  and  char- 
acters as  he  saw  then  is  a  model  for  all  writers  of  rec- 
ord. He  was  the  first  great  Italian  historian,  and  no 
man  has  ever  been  more  ardent  in  his  patriotism  or  a 
more  earnest  supporter  of  government  for  and  by  the  peo- 
ple. The  greatest  tribute  to  his  inflexible  honesty  of 
character  is  the  fact  that  while  no  man  had  greater  op- 
portunities to  enrich  himself  at  the  cost  of  the  State,  he 
died  leaving  his  family  in  the  greatest  poverty.  His 
varied  political  experience,  and  his  assiduous  study  of 
classic  writers,  gave  him  the  ability  as  well  as  the  desire 
to  write  the  history  of  his  native  State.  Time  has  pro- 
nounced this  History  to  be  a  classic  worthy  of  preserva- 
tion, and  the  perspective  of  time  has  also  enabled  us  to 
form  a  juster  and  greater  estimate  of  its  author. 

The  Ideal  Republics  and  Empires  that  have  been 
constructed  from  time  to  time  by  political  dreamers  have 


viii  THE   UNIVERSAL   CLASSICS 

all  the  attractiveness  of  works  like  Pilgrim's  Progress 
or  Gulliver's  Travels,  combined  with  a  philosophy  and 
political  insight  that  give  them  a  double  claim  to  be 
considered  Classics.  Modern  progress  may  be  more  deeply 
indebted  than  we  can  estimate  to  the  fantasies  and 
airy  castles  of  men  like  Rousseau,  More,  and  Campanella. 
The  four  Ideal  Republics  or  Governments  described  in 
this  volume  are  perhaps  the  most  famous  of  all,  since 
they  rank  not  only  as  great  creations  of  the  imagination 
but  as  literature  of  the  highest  class;  and  their  writers 
have  a  further  claim  upon  posterity  from  the  fact  that 
they  helped  to  make  history. 

The  Third  and  concluding  Section  of  the  Library  deals 
with  that  tremendous  range  of  world- wide  literature 
which  we  call,  for  want  of  a  better  name,  Belles  Lettres. 
Goethe  contributes  his  brilliant  and  sagacious  observa- 
tions on  men  and  things  as  he  communicated  them  to 
Eckerman.  Landor,  of  whom  Swinburne  has  said  that 
Milton  alone  stands  higher,  both  in  prose  and  verse,  fur- 
nishes us  with  his  Classical  Conversations.  Montesquieu 
and  Goldsmith  are  drawn  on  for  their  Persian  and  Chi- 
nese Letters.  Lord  Chesterfield  gives  us  the  irony  and 
hard-headed  criticism  combined  with  worldly  common 
sense  contained  in  the  Letters  to  His  Son,  and  the  vari- 
ous names  best  known  in  French  and  English  Belles 
Lettres  yield  what  is  greatest  in  them.  Ottoman  Literature, 
comprising  Arabian,  Persian,  and  Hebraic  Poems,  affords 
the  reader  an  insight  into  the  romantic  and  dramatic 
character  of  the  Oriental.  The  Dabistan,  possibly  the 
most  extraordinary  book  ever  written  in  the  East,  finds 
itself  at  home  in  this  section,  while  the  Literature  of  the 
Hebrews  is  ideally  represented  in  that  most  wonderful  of 
all  monuments  of  human  wisdom,  and  perhaps  folly,  the 
"Talmud,"  together  with  the  basis  of  modern  metaphysics, 
the  "Kabbala." 

The  Sufistic  Quatrains  of  Omar  Khayyam  are  here 
for  the  first  time  presented  complete  in  a  collection  of 
this  order.  The  various  editions  of  Fitzgerald  are  re- 


GENERAL   PREFACE  ix 

printed,  collated,  and  to  them  is  added  the  valuable 
Heron-Allen  analysis  of  Fitzgerald's  sources  of  inspira- 
tion. The  very  rare  Whinfield  version  is  found  here 
complete;  and  for  the  first  time  in  English  appears  M. 
Nicolas'  French  transcription  of  the  Teheran  Manuscript. 
It  is  safe  to  say  that  any  lover  of  Omar  wishing  to  add 
to  his  collection  the  versions  here  quoted  would  be  com- 
pelled to  disburse  more  than  one  hundred  times  the 
amount  this  book  will  cost  him. 

While  the  Library  of  Universal  Classics  does  not  claim 
to  be  the  final  condensation  of  the  treasure  houses  of 
human  philosophy  and  lore,  whether  practical  or  ideal, 
it  does  most  emphatically  assert  its  right  to  be  called 
the  most  useful,  most  attractive,  and  most  representative 
selection,  within  the  limits  assigned  to  it,  of  those  world- 
masterpieces  of  literature  which  men,  for  lack  of  a  more 
luminous  name,  call  Classics. 


HUGO  GROTIUS 
From  an  Original  Painting. 


THE  RIGHTS  OF 
WAR  AND  PEACE 


LAW  OF    NATURE 
AND  OF   NATIONS 


TRANSLATED  FROM  THE  ORIGINAL  LATIN  OF 


GROTIUS 


WITH  NOTES  AND  ILLUSTRATIONS  FROM 
POLITICAL  AND  LEGAL  WRITERS 


A.  C.  CAMPBELL  A.M. 


WITH  AN  INTRODUCTION  BY 

DAVID  J.  HILL 


Assistant  Secretary  of  State  of  the  United  State* 


N.WALTER  DUNNE,  PUBLIM IER 
NEW  YORK  &  LONDON 


COPYRIGHT,  1901, 

BY 
M.  WALTER    DUNNfc, 

p  U  BLI8HER 


ILLUSTRATIONS 


HUGO  GROTIUS     .      .      .      ...      .      .      .      .      .      Frontispiece 

From  an  original  painting. 

WAR  .      .      .      .      .      .      .      ....      .      ...    .      .      .      .109 

By  Gari  Melchers, 

From  a  panel  painting  in  Library  of  Congress. 

PEACE 213 

By  Gari  Melchers. 

From  a  panel  painting  in  Library  of  Congress. 

WAR  AND  PEACE 307 

Frontispiece  to  a  rare  edition  of  Grotius. 

(xi) 


CONTENTS 


BOOK  I. 
CHAPTER  PAGE 

Introduction i 

I.    On  War  and   Right 17 

II.     Inquiry  into  the  Lawfulness   of    War 31 

III.    The   Division  of  War  into   Public  and   Private,  and  the 

Nature  of   Sovereign  Power 55 

BOOK  II. 

I.  Defense  of  Person  and  Property 73 

II.  The  General  Rights  of  Things 85 

III.  On  the  Original   Acquisition   of  Things,  and   the   Right 

of  Property  in  Seas  and  Rivers 103 

IV.  Title    to  Desert    Lands   by    Occupancy,    Possession,   and 

Prescription 109 

IX.     In  What  Cases  Jurisdiction  and  Property  Cease    .      .      .117 

X.     The  Obligation  Arising  from  Property 123 

XI.     On    Promises 131 

XII.    On  Contracts 144 

XIII.     On  Oaths 160 

XV.    On    Treaties  and  on   Engagements  Made   by   Delegates 

Exceeding  Their   Powers 166 

XVI.     The  Interpretation  of  Treaties 176 

XVII.     On  Damages  Occasioned   by  Injury,  and  the  Obligation 

to  Repair  Them 195 

XVIII.     On  the  Rights   of   Embassies 202 

XIX.     On  the   Right  of  Burial 213 

XX.     On  Punishments 220 

XXI.     On  the  Communication  of  Punishment 256 

XXII.    On  the  Unjust  Causes  of  War 267 

XXHI.    On  Doubtful  Causes 274 

XXIV.    Precautions    against    Rashly    Engaging  in    War,    Even 

upon   Just   Grounds 280 

BOOK  III. 

1.    What  Is  Lawful  in  War 290 

II.  In  What  Manner  the  Law  of  Nations  Renders  the  Prop- 

erty of    Subjects   Answerable   for   the    Debts   of 
Sovereigns.    The  Nature  of  Reprisals  ....  307 

III.  On   Just   or    Solemn   War   According    to   the    Law  of 

Nations   on  Declarations  of   War 314 

(xiii) 


XIV 


THE   RIGHTS   OF   WAR   AND   PEACE 


CHAPTER  PACE 

IV.    On  the  Right  of  Killing  an  Enemy  in  Lawful  War  and 

Committing   Other  Acts  of  Hostility      ....  323 
V.     On  the   Right  to  Lay  Waste  an  Enemy's  Country  and 

Carry  Off  His  Effects 332 

VI.     On  the  Acquisition  of  Territory  and  Property  by  Right 

of  Conquest 334 

VII.    On  the  Right  over   Prisoners  of   War 345 

VIII.    On  Empire  over  the  Conquered 348 

IX.     Of  the  Right  of  Postliminium 351 

XI.    The    Right   of    Killing    Enemies,   in    Just  War,    to   be 

Tempered  with  Moderation  and  Humanity     .      .  359 

XII.     On  Moderation  in  Despoiling  an  Enemy's  Country   .      .  365 

XIII.    On  Moderation  in  Making  Captures  in  War    ....  369 

XV.     On  Moderation  in  Acquiring  Dominion 372 

XVI.    On  Moderation   with  Respect  to  Things   Excluded  from 

the  Right  of  Postliminium  by  the  Law  of  Nations  .  375 
XVII.     Respecting  Those  Who  Are  Neutral  in  War  ....  377 

XIX.    On  Good  Faith  between  Enemies 379 

XX.    On    the    Public    Faith    by   Which   War  Is  Concluded; 
Comprising  Treaties  of  Peace,  and  the  Nature  of 
Arbitration,  Surrender,    Hostages,    Pledges     .     .  385 
XXI.     On  Faith  During  the  Continuance  of  War,  on  Truces, 

Safe-Conducts,  and  the  Redemption  of  Prisoners  .  403 
XXII.     On  the  Faith  of  Those  Invested  with  Subordinate  Powers 

in  War 411 

XXIV.     On  Tacit  Faith 415 

XXV.    Conclusion 417 

i 

INDEX 419 


INTRODUCTION 


THE  WORK   AND    INFLUENCE    OF  HUGO  GROTIUS. 


THE  claims  of  the  great  work  of  Grotius,  ^De  Jure 
Belli  ac  Pacts,  *  to  be  included  in  a  list  of  Universal 
Classics,  do  not  rest  upon  the  felicity  of  style 
usually  expected  in  a  classic  composition.  His  work  is 
marked  by  frequent  rhetorical  deformities,  tedious  and 
involved  forms  of  reasoning,  and  perplexing  obscurities 
of  phraseology  which  prevent  its  acceptance  as  an  exam- 
ple of  elegant  writing.  Notwithstanding  these  external 
defects,  it  is,  nevertheless,  one  of  the  few  notable  works 
of  genius  which,  among  the  labors  of  centuries,  stand 
forth  as  illustrations  of  human  progress  and  constitute 
the  precious  heritage  of  the  human  race. 

If  it  is  not  literature  in  the  technical  sense,  the  mas- 
terpiece of  Grotius  is  something  higher  and  nobler, —  a 
triumph  of  intelligence  over  irrational  impulses  and  bar- 
barous propensities.  Its  publication  marks  an  era  in  the 
history  of  nations,  for  out  of  the  chaos  of  lawless  and 
unreasoning  strife  it  created  a  system  of  illuminating 
principles  to  light  the  way  of  sovereigns  and  peoples  in 
the  paths  of  peace  and  general  concord. 

I.  THE  REIGN  OF  WAR. 

The  idea  of  peaceful  equity  among  nations,  now  ac- 
cepted as  a  human  ideal,  though  still  far  from  realiza- 
tion, was  for  ages  a  difficult,  if  not  an  impossible, 
conception.  All  experience  spoke  against  it,  for  war 
was  the  most  familiar  phenomenon  of  history. 

Among  the  Greek  city-states,  a  few  temporary  leagues 
and  federations  were  attempted,  but  so  feeble  were  the 
bonds  of  peace,  so  explosive  were  the  passions  which  led 
to  war,  that  even  among  the  highly  civilized  Hellenic 
peoples,  community  of  race,  language,  and  religion  was 
powerless  to  create  a  Greek  nation.  It  was  reserved  for 
i  (0 


2  THE   RIGHTS   OF   WAR   AND   PEACE 

the  military  genius  of  Alexander  the  Great,  at  last,  by 
irresistible  conquest,  to  bring-  the  Greek  Empire  into 
being,  to  be  destroyed  in  turn  by  superior  force. 

The  Roman  Empire  almost  achieved  the  complete 
political  unity  of  Europe,  and  bound  parts  of  three 
continents  under  one  rule,  but  the  corruption  of  the 
military  power  which  held  it  together  led  to  its  inevita- 
ble dismemberment. 

After  the  conflicts  of  the  barbaric  kingdoms  which 
followed  the  dissolution  of  the  Western  Empire  were 
ended  by  the  predominance  of  the  Prankish  monarchy, 
the  world  believed  that  the  Pax  Romana  was  to  be  re- 
stored in  Europe  by  the  hand  of  Charles  the  Great;  but 
the  disruptive  forces  were  destined  to  prevail  once  more, 
and  the  Holy  Roman  Empire  never  succeeded  in  reviv- 
ing the  power  of  ancient  Rome.  And  thus  the  dream 
of  a  universal  monarchy,  of  a  central  authority  able  to 
preside  over  kings  and  princes,  adjusting  their  difficul- 
ties, and  preserving  the  peace  between  them,  was  at 
last  proved  futile. 

In  each  of  the  great  national  monarchies  that  had  al- 
ready risen  or  were  still  "rising  on  the  ruins  of  imperial 
dominion,  particularly  in  France,  England,  Holland,  and 
the  States  of  Germany,  a  continuous  internal  conflict 
over  questions  of  religion  complicated  the  bitterness  and 
destructiveness  of  foreign  wars  until  Europe  was  reor- 
ganized by  the  Peace  of  Westphalia,  in  1648. 

It  was  in  the  midst  of  these  wars  that  Grotius  was 
born.  He  saw  his  own  country  rising  from  a  baptism  of 
blood  and  all  Europe  rent  and  torn  by  the  awful  strug- 
gle of  the  Thirty  Years'  War,  in  the  midst  of  which  his 
great  work  was  written  and  to  whose  conclusion  it  served 
as  a  guide  and  inspiration.  The  Empire,  dismembered, 
had  been  reduced  to  almost  complete  impotence,  the 
Church  had  been  disrupted,  and  no  international  author- 
ity was  anywhere  visible.  Amid  the  general  wreck  of 
institutions  Grotius  sought  for  light  and  guidance  in  great 
principles.  Looking  about  him  at  the  general  havoc  which 
war  had  made,  the  nations  hostile,  the  faith  of  ages  shat- 
tered, the  passions  of  men  destroying  the  commonwealths 
which  nourished  them,  he  saw  that  Europe  possessed  but 
one  common  bond,  one  vestige  of  its  former  unity, —  the 
human  mind.  To  this  he  made  appeal  and  upon  its 
deepest  convictions  he  sought  to  plant  the  Law  of 
Nations. 


INTRODUCTION  3 

II.  THE  PREDECESSORS  OF  GROTIUS. 

It  is  historically  accurate  to  say,  that,  until  formulated 
by  Grotius,  Europe  possessed  no  system  of  international 
law.  Others  had  preceded  him  in  touching  upon  certain 
aspects  of  the  rights  and  duties  of  nations,  but  none  had 
produced  a  system  comparable  to  his. 

The  earliest  attempt  to  formulate  recognized  interna- 
tional customs  was  the  formation  of  the  early  maritime 
codes,  rendered  necessary  by  the  expansion  of  mediaeval 
commerce  from  the  end  of  the  eleventh  to  the  end  of  the 
sixteenth  century,  such  as  the  ^Jugemens  d'  OUron* 
adopted  by  the  merchants  of  France,  England,  and  Spain, 
and  reissued  under  other  names  for  the  merchants  of 
The  Netherlands  and  the  Baltic.  (<  The  Consolato  del 
Mare*  a  more  elaborate  compilation,  was  made,  appa- 
rently at  Barcelona,  about  the  middle  of  the  fourteenth 
century,  and  accepted  generally  by  the  traders  of  the 
chief  maritime  powers.  It  was  in  the  cradle  of  com- 
merce, therefore,  that  international  law  awoke  to  con- 
sciousness. 

As  the  Church  was  often  intrusted  with  the  task  of 
pacification,  it  is  but  natural  to  look  among  her  repre- 
sentatives for  the  earliest  writers  on  the  laws  of  inter- 
national relations.  It  is,  in  fact,  among  the  theological 
moralists  that  we  find  the  first  students  of  this  subject. 
As  early  as  1564,  a  Spanish  theologian,  Vasquez,  con- 
ceived of  a  group  of  free  states  with  reciprocal  rights 
regulated  by  jus  naturale  et  gentium,  without  regard  to 
a  world-power,  either  imperial  or  ecclesiastical.  In  1612, 
Saurez  pointed  out  that  a  kind  of  customary  law  had  arisen 
from  the  usages  of  nations,  and  distinctly  described  a  so- 
ciety of  interdependent  states  bound  by  fundamental 
principles  of  justice. 

At  the  close  of  the  fifteenth  and  the  beginning  of  the 
sixteenth  centuries,  a  series  of  circumstances  arose  ne- 
cessitating the  extension  of  jurisprudence  beyond  its  an- 
cient boundaries,  and  thus  tending  to  produce  a  group 
of  international  jurists.  Among  the  juristic  writers  of 
this  time  are  Balthazar  Ayala,  a  Spanish  jurisconsult, 
who  died  in  1584,  having  written  in  a  historico-judicial 
spirit  on  the  subject  of  war  in  his  *De  Jure  et  Officiis 
Belli*;  Conrad  Brunus,  a  German  jurist,  who  wrote  of 
the  rights  and  duties  of  ambassadors  in  his  "De  Lega- 
tionibus*  published  in  1548;  and  pre-eminent  above  all, 


4  THE   RIGHTS   OF  WAR  AND   PEACE 

Albericus  Gentilis,  an  Italian  professor  of  jurisprudence 
and  lecturer  at  Oxford,  a  writer  of  force  and  originality, 
who  published  his  "De  Legationibus*  in  1583  and  his 
«De  Jure  Belli*  in  1589. 

III.   THE  LIFE  AND   PERSONALITY  OF  GROTIUS. 

HUGO  GROTIUS,  to  use  the  Latin  form  of  his  name 
by  which  he  is  best  known,  or  Hugo  de  Groot  as  he  is 
called  in  Holland,  descended  from  a  race  of  scholars  and 
magistrates,  was  born  at  Delft,  on  April  roth,  1583.  His 
family  history  has  been  related  with  much  detail  "By  De 
Burigny,  in  his  <(  Vie  de  Grotius, *  published  in  French  at 
Amsterdam  in  1754;  and  by  Vorsterman  van  Oyen,  in  his 
*Hugo  de  Groot  en  Zijn  Gesclacht*  a  complete  genealogy  in 
Dutch,  published  at  Amsterdam  in  1883,  which  gives  the 
descendants  of  Grotius  down  to  the  present  generation. 
His  origin  is  traced  from  a  French  gentleman,  Jean  Cor- 
nets, who  took  up  his  residence  in  The  Netherlands  in  1402. 
His  descendant,  Cornelius  Cornets,  married  the  daughter 
of  a  burgomaster  of  Delft  on  condition  that  the  future 
children  of  this  marriage  should  bear  the  name  of  their 
mother's  family,  in  order  to  perpetuate  the  distinction 
which  it  had  achieved.  The  maternal  name  imposed  by 
Cornelius  Cornets's  Dutch  father-in-law,  Dirk  van  Kraay- 
enburg  de  Groot,  was  de  Groot,  meaning  the  Great,  and 
is  said  to  have  been  bestowed  for  signal  services  rendered 
to  his  country  by  the  first  who  had  borne  it  four  hundred 
years  before.  From  this  marriage  sprung  a  Hugo  de 
Groot,  distinguished  for  his  learning  in  Greek,  Latin,  and 
Hebrew  and  five  times  burgomaster  of  his  native  city. 
His  eldest  son,  Cornelius,  was  a  noted  linguist  and  mathe- 
matician who  studied  law  in  France  and  received  high 
office  in  his  own  country,  afterward  becoming  a  pro- 
fessor of  law  and  many  times  rector  of  the  University  of 
Leyden.  Another  son,  John  de  Groot,  the  father  of 
Hugo  Grotius,  studied  there  under  the  famous  Lipsius, 
who  speaks  of  him  with  the  highest  commendation. 
Four  times  burgomaster  of  Delft,  John  de  Groot  became 
curator  of  the  University  of  Leyden,  a  position  which 
he  filled  with  great  dignity  and  honor. 

In  his  earliest  years  the  young  Hugo  gave  evidence  of 
marked  and  varied  ability.  At  eight  he  wrote  Latin 
verses  which  betrayed  poetic  talent ;  at  twelve  he  entered 
the  University  where  he  became  a  pupil  of  that  prince 


INTRODUCTION  5 

of  scholars,  Joseph  Scaliger,  who  directed  his  studies; 
and  at  fifteen  he  defended  "  with  the  greatest  applause  * 
Latin  theses  in  philosophy  and  jurisprudence.  His  fame 
as  a  prodigy  of  diversified  learning  spread  far  and  wide, 
and  great  scholars  declared  they  had  never  seen  his  equal. 

Grotius  had  won  celebrity  even  in  foreign  lands  when, 
in  1600,  at  the  age  of  seventeen,  he  was  admitted  to  the 
bar.  The  youthful  prodigy  had  already  accompanied  the 
Grand  Pensionary,  John  of  Oldenbarneveld  on  a  special 
embassy  to  France,  where  he  was  presented  to  Henry 
IV.,  who  bestowed  upon  him  his  portrait  together  with  a 
gold  chain,  and  graciously  called  him  <(The  Miracle  of 
Holland. w  At  Orleans  he  was  made  a  Doctor  of  Laws. 

Married  in  1609  to  Marie  van  Reigersberg,  whose 
devotion  was  worthy  of  his  deep  affection,  and  loaded 
with  public  honors,  having  been  named  the  official  his- 
torian of  the  United  Provinces  and  the  advocate-general 
of  two  provinces,  Holland  and  Zeeland,  Grotius  set  his 
hand  to  a  work  entitled  ^Mare  Librum*  in  which  he 
defended  the  freedom  of  the  sea  and  the  maritime  rights 
of  his  country  against  the  arrogant  pretensions  of  the 
Portuguese  in  suppressing  the  commerce  of  other  nations 
in  Eastern  waters, —  a  treatise  destined  to  become  still 
more  celebrated  in  the  history  of  international  law  by 
Selden's  reply,  ^ Mare  Clausum*  written  in  1635.  Next, 
turning  his  attention  to  the  history  of  The  Netherlands, 
he  devoted  himself  for  a  time  to  his  <(  Annals  of  the  War 
of  Independence.® 

In  1613,  Grotius  added  to  his  laurels  as  poet,  jurist, 
and  historian  by  entering  the  field  of  politics,  and  he  was 
appointed  Pensionary  of  Rotterdam  upon  the  condition 
that  he  should  continue  in  office  during  his  own  pleasure. 
It  was  during  a  visit  to  England  upon  a  diplomatic  mis- 
sion in  this  same  year  that  he  met  the  great  scholar 
Isaac  Casaubon,  who  said  in  a  letter  to  Daniel  Heinsius: 
<(  I  cannot  say  how  happy  I  esteem  myself  in  having  seen 
so  much  of  one  so  truly  great  as  Grotius.  A  wonderful 
man  !  This  I  knew  him  to  be  before  I  had  seen  him ;  but 
the  rare  excellence  of  that  divine  genius  no  one  can 
sufficiently  feel  who  does  not  see  his  face  and  hear  him 
speak.  Probity  is  stamped  on  all  his  features.* 

Closely  related  by  personal  friendship  as  well  as  by 
his  official  duties  to  the  Grand  Pensionary,  John  of  Olden- 
barneveld, Grotius  was  destined  to  share  with  that  unfortu- 
nate patriot  the  proscription  and  punishment  which 


6  THE   RIGHTS   OF   WAR   AND   PEACE 

Maurice  of  Orange  visited  upon  the  two  confederates  in 
the  defense  of  religious  tolerance.  Risking  all  as  the 
apostles  of  peace,  they  were  soon  condemned  to  be  its 
martyrs.  Oldenbarneveld,  having  incurred  the  bitter 
hatred  of  the  Stadtholder,  was  condemned  to  death  by 
decapitation  on  May  izth,  1619.  Grotius,  less  offensive 
to  Maurice  on  account  of  his  youth  and  his  gracious  per- 
sonality, was  sentenced  six  days  later  to  perpetual 
imprisonment.  On  the  6th  of  June,  1619,  he  was  incar- 
cerated in  the  fortress  of  Loevestein. 

Rigorously  treated  at  first,  his  docility  and  resignation 
soon  won  the  respect  and  affection  of  his  keepers.  Writ- 
ing materials  and  books  were  in  time  accorded  him,  and 
finally,  on  condition  that  she  would  continue  to  share  his 
captivity,  he  was  granted  the  presence  of  his  wife.  The 
studious  prisoner  and  his  devoted  companion  completely 
disarmed  all  suspicion  of  an  intention  to  escape,  and  the 
ponderous  chest  in  which  books  came  and  went  con- 
tinued to  bring  periodic  consolation  to  the  mind  of  the 
busy  scholar.  A  treatise  on  the  truth  of  the  Christian 
religion,  a  catechism  for  the  use  of  his  children,  a  digest 
of  Dutch  law,  and  other  compositions  served  to  occupy 
and  alleviate  the  weary  months  of  confinement,  until  one 
day  when  the  time  seemed  opportune  Madame  Grotius 
secretly  inclosed  her  husband  in  the  great  chest  and  it 
was  borne  away  by  two  soldiers.  Descending  the  stone 
steps  of  the  prison  the  bearers  remarked  that  the  trunk 
was  heavy  enough  to  contain  an  Arminian,  but  Madame 
Grotius's  jest  on  the  heaviness  of  Arminian  books  smoothed 
over  the  suspicion,  if  one  was  really  entertained,  and  the 
great  jurist  was  sent  in  the  chest  safe  to  Gorcum, 
attended  by  a  faithful  domestic,  where  in  the  house  of  a 
friend  the  prisoner  emerged  without  injury  and  in  the 
guise  of  a  stone  mason  hastened  to  Antwerp.  From 
Antwerp  he  took  refuge  in  France,  where  he  arrived  in 
April,  1621,  and  was  joined  by  his  faithful  wife  at  Paris 
in  the  following  October. 

The  bitterness  of  exile  was  now  to  be  added  to  the 
miseries  of  imprisonment,  for  Grotius  was  not  only  ex- 
cluded from  The  Netherlands,  but  in  extreme  poverty. 
His  letters  reveal  his  anguish  of  spirit  at  this  period, 
but  a  generous  Frenchman,  Henri  de  Meme,  placed  his 
country  house  at  Balagni  at  his  disposition,  and  there, 
supported  by  a  small  pension,  which  Louis  XIII  had 
graciously  accorded  him,  though  irregularly  and  tardily 


INTRODUCTION  7 

paid,  Grotius  commenced  his  great  work,   "De  Jure  Belli 
ac  Pads*  in  the  summer  of   1623. 

Much  speculation  has  been  indulged  in  regarding  the 
causes  which  led  to  the  composition  of  this  masterpiece, 
but  a  recent  discovery  has  rendered  all  this  superfluous, 
as  well  as  the  ascription  of  special  merit  to  the  Coun- 
selor Peyresc  for  suggesting  the  idea  of  the  work.  It 
is,  indeed,  to  the  pacific  genius  of  Grotius  more  than  to 
all  other  causes  that  the  world  owes  the  origin  of  his 
great  work;  for  it  sprang  from  his  dominant  thought, 
ever  brooding  on  the  horrors  of  war  and  the  ways  of 
peace,  during  more  than  twenty  years,  and  never  wholly 
satisfied  till  its  full  expression  was  completed. 

In  the  winter  of  1604,  there  had  sprung  out  of  his 
legal  practice  the  idea  of  a  treatise  entitled  "De  Jure 
Praedae*  fully  written  out,  but  never  printed  by  its 
author.  The  manuscript  remained  unknown  by  all  his 
biographers  until  it  was  brought  to  light  and  printed 
under  the  auspices  of  Professor  Fruin  at  The  Hague  in 
1868.  This  interesting  document  proves  that  not  only 
the  general  conception  but  the  entire  plan  and  even  the 
arrangement  of  the  *De  Jure  Belli  ac  Pads B  were  in  the 
mind  of  Grotius  when  he  was  only  twenty-one  years  of 
age.  The  difference  between  the  earlier  work  and  th 
later  is  chiefly  one  of  detail  and  amplification,  the  differ- 
ence which  twenty  years  of  reading,  experience,  medita- 
tion and  maturity  of  faculty  would  inevitably  create. 

The  curious  may  find  in  his  letters  the  almost  daily 
chronicle  of  his  progress  with  his  book  to  the  time  of 
its  publication  after  excessive  labors  lasting  more  than 
a  year.  In  March,  1625,  the  printing  of  the  first__edi- 
tion,  which  h~acT"  occupied  four  months,  was  completed 
and  copies  were  sent  to  the  fair  at  Frankfort.  His 
honorarium  as  author  consisted  of  two  hundred  copies, 
many  of  which  he  presented  to  his  friends.  From  the 
sale  of  the  remainder  at  a  crown  each,  he  was  not  able 
to  reimburse  his  outlay.  In  the  following  August  he 
wrote  to  his  father  and  brother  that  if  he  had  their  ap- 
probation and  that  of  a  few  friends,  he  would  have  no 
cause  for  complaint  but  would  be  satisfied.  Louis  XIII, 
to  whom  the  work  was  dedicated,  accepted  the  homage 
of  the  author  and  a  handsomely  bound  copy,  but  failed 
to  exercise  the  grace  customary  with  monarchs  by  ac- 
cording a  gratification.  At  Rome,  the,  treatise  was  pro- 
scribed in  the  index  in  1627.  Almost  penniless  and 


C| 

a 


8  THE   RIGHTS   OF   WAR   AND   PEACE 

suffering  from  his  protracted  toil,  Grotius  seemed  destined 
to  neglect  and  oblivion,  yet  from  his  exile  he  wrote  to 
his  brother :  ft  It  is  not  necessary  to  ask  anything  for 
me.  If  my  country  can  do  without  me,  I  can  do  with- 
out her.  The  world  is  large  enough.  .  .  ." 

Invited  to  enter  the  service  of  France  by  Richelieu, 
Grotius  would  not  accept  the  conditions  which  the  Car- 
dinal wished  to  impose, —  such  at  least  is  the  inevitable 
inference  from  his  letters.  His  pension  was  not  paid 
and  his  circumstances  became  so  serious  that  one  of  his 
children  had  but  a  single  coat.  At  length,  pushed  to  the 
utmost  extremity  of  want  and  instigated  by  his  energetic 
wife,  Grotius  resolved  to  return  to  Holland.  Driven  from 
Rotterdam  to  Amsterdam,  where  he  hoped  to  settle  down 
as  a  lawyer,  the  States  General  twice  ordered  his  arrest 
and  named  a  price  for  his  delivery  to  the  authorities. 
The  new  Stadtholder,  Frederick  Henry,  who,  before  suc- 
ceeding his  brother  Maurice,  had  written  kindly  to  Grotius 
after  his  escape  from  imprisonment,  now  approved  his 
proscription.  Abandoned  by  his  prince  as  well  as  by  his 
countrymen,  Grotius  once  more  turned  his  face  toward 
exile  and  set  out  for  Hamburg. 

IV.  THE   WORK    OF   GROTIUS. 

It  may  be  of  interest  at  this  point  in  the  career  of 
Grotius  to  describe  briefly  the  character  of  the  great  work 
which  was  soon  to  win  for  him  a  new  celebrity,  and  ma- 
terially change  his  prospects  in  life. 

The  inspiration  of  his  *De  Jure  Belli  ac  Pacts*  was  the 
love  of  peace,  yet  he  was  far  from  being  one  of  those 
visionaries  who  totally  condemn  the  use  of  armed  force 
and  proscribe  all  war  as  wrong  and  unnecessary.  On  the 
contrary,  he  seeks  to  discover  when,  how,  and  by  whom 
war  may  be  justly  conducted. 

His  plan  of  treatment  is  as   follows:  — 

In  the  First  Book,  he  considers  whether  any  war  is 
just,  which  leads  to  the  distinction  between  public  and 
private  war,  and  this  in  turn  to  a  discussion  of  the  nature 
and  embodiment  of  sovereignty. 

In  the  Second  Book,  the  causes  from  which  wars  arise, 
the  nature  of  property  and  personal  rights  which  furnish 
their  occasions,  the  obligations  that  pertain  to  ownership, 
the  rule  of  royal  succession,  the  rights  secured  by  com- 


INTRODUCTION  9 

pacts,    the    force    and   interpretation  of  treaties,  and  kin- 
dred subjects  are  examined. 

In  the  Third  Book,  the  question  is  asked,  a  What  is 
lawful  war?*  which  prepares  for  the  consideration  of 
military  conventions  and  the  methods  by  which  peace  is 
to  be  secured. 

From  the  authority  of  the  Empire  and  the  Church,  no 
longer  effectual  as  an  international  agency,  Grotius  appeals 
to  Humanity  as  furnishing  the  true  law  of  nations.  Be- 
ginning with  the  idea  that  there  is  a  kinship  among  men 
established  by  nature,  he  sees  in  this  bond  a  community 
of  rights.  The  society  of  nations,  including  as  it  does 
the  whole  human  race,  needs  the  recognition  of  rights 
as  much  as  mere  local  communities.  As  nations  are  but 
larger  aggregations  of  individuals,  each  with  its  own  cor- 
porate coherence,  the  accidents  of  geographic  boundary 
do  not  obliterate  that  human  demand  for  justice  which 
springs  from  the  nature  of  man  as  a  moral  being.  There 
is,  therefore,  as  a  fundamental  bond  of  human  societies; 
a  Natural  Law,  which,  when  properly  apprehended,  is 
perceived  to  be  the  expression  and  dictate  of  right  rea- 
son. It  is  thus  upon  the  nature  of  man  as  a  rational 
intelligence  that  Grotius  founds  his  system  of  universal 
law. 

As  this  law  of  human  nature  is  universally  binding 
wherever  men  exist,  it  cannot  be  set  aside  by  the  mere 
circumstances  of  time  and  place,  whence  it  results  that 
there  is  a  law  of  war  as  well  as  a  law  of  peace.  As  this 
law  applies  to  the  commencement  of  armed  conflicts,  war 
is  never  to  be  undertaken  except  to  assert  rights,  and 
when  undertaken  is  never  to  be  carried  on  except  within 
the  limits  of  rights.  It  is  true  that  in  the  conflict  of 
arms  laws  must  be  silent,  but  only  CIVIL  lawss  which 
( govern  in  times  of  peace.  Those  laws  which  are  PERPET- 
UAL, which  spring  from  the  nature  of  man  as  man,  and 
'not  from  his  particular  civil  relations,  continue  even  dur- 
ing strife  and  constitute  the  laws  of  war.  To  deny  these, 
or  to  disobey  them,  implies  a  repudiation  of  human  na- 
ture itself  and  of  the  divine  authority  which  has  invested 
it  with  rights  and  obligations.  To  disavow  the  impera- 
tive character  of  these  perpetual  laws,  is  to  revert  to 
barbarism. 

It  is  necessary,  however  to  distinguish  between  Nat- 
ural Law,  that  principle  of  justice  which  springs  from 


io  THE   RIGHTS   OF  WAR  AND   PEACE 

man's  rational  nature,  and  Conventional  Law,  which 
results  from  his  agreements  and  compacts.  Natural  Law 
remains  ever  the  same,  but  institutions  change.  While 
the  study  of  abstract  justice,  apart  from  all  that  has  its 
origin  in  the  will  or  consent  of  men,  would  enable  us 
to  create  a  complete  system  of  jurisprudence,  there  is 
another  source  which  must  not  be  neglected,  since  men 
have  established  the  sanctity  of  certain  rules  of  conduct 
by  solemn  convention. 

The  Law  of  Nations  does  not  consist,  therefore,  of  a 
mere  body  of  deductions  derived  from  general  principles 
of  justice,  for  there  is  also  a  body  of  doctrine  based  upon 
CONSENT;  and  it  is  this  system  of  voluntarily  recognized 
obligations  which  distinguishes  international  jurisprudence 
from  mere  ethical  speculation  or  moral  theory.  There 
are  CUSTOMS  of  nations  as  well  as  a  universally  accepted 
law  of  nature,  and  it  is  in  this  growth  of  practically 
recognized  rules  of  procedure  that  we  trace  the  evolu- 
tion of  law  international  — jus  inter  gentes  —  as  a  body  of 
positive  jurisprudence. 

It  is  evident  that  the  mind  of  Grotius  is  continually 
struggling  to  establish  a  science  upon  this  positive  basis, 
and  it  is  this  which  gives  a  distinctive  character  to  his 
effort.  The  great  writers  of  all  ages  are  cited  with  a 
superfluous  lavishness,  not  so  much  to  support  his  claims 
by  an  aggregation  of  individual  opinions  —  still  less  to 
display  his  erudition,  as  his  critics  have  sometimes  com- 
plained—  as  to  give  a  historic  catholicity  to  his  doc- 
trine by  showing  that  the  laws  he  is  endeavoring  to 
formulate  have,  in  fact,  been  accepted  in  all  times  and 
by  all  men.  For  this  purpose  also,  he  makes  abun- 
dant use  of  the  great  authorities  on  Roman  Law, 
whose  doctrines  and  formulas  were  certain  to  carry  con- 
viction to  the  minds  of  those  whom  he  desired  to  con- 
vince. 

It  is  needless,  perhaps,  to  point  out  that  the  work  of 
Grotius  is  not  and  could  not  be  a  work  of  permanent 
authority  as  a  digest  of  international  law.  His  own  wise 
appreciation  of  the  positive  and  historical  element — the 
authority  derived  from  custom  —  should  exempt  him 
from  the  pretense  of  absolute  finality.  It  is  the  Book  of 
Genesis  only  that  he  has  given  us,  but  it  is  his  inde- 
feasible distinction  to  have  recorded  the  creation  of  order 
out  of  chaos  in  the  great  sphere  of  international  rela- 
tionship, justly  entitling  him  to  the  honor  accorded  to 


INTRODUCTION  1 1 

him  by  the    spontaneous    consent  of    future   times  as  the 
Father  of  International  Jurisprudence. 

It  is  not  difficult  after  more  than  three  centuries  of 
thought  and  experience  to  point  out  the  defects  in  his 
doctrine.  If  he  justifies  slavery,  it  is  not  without  inge- 
nuity; for,  he  argues,  if  a  man  may  sell  his  labor,  why 
not  his  liberty  ?  and  if  the  conqueror  may  impose  his 
will  upon  the  property  of  the  vanquished,  why  not  also 
upon  his  person  ?  If  he  identifies  sovereignty  with 
supreme  power  without  any  adequate  conception  of  its 
ethical  basis,  he  is  at  least  as  advanced  in  his  thinking 
as  the  conceptions  of  his  time,  which  had  not  yet  grasped 
the  idea  of  the  state  as  a  moral  organism.  If  he  has  no 
adequate  notion  of  neutrality,  believing  it  to  be  the  duty 
of  a  nation  to  enlist  its  energies  for  what  it  deems  the 
right  side,  rather  than  to  disavow  all  responsibility  for 
actions  foreign  to  its  own  interests,  he  is  at  least  sup- 
ported in  this  by  the  opinion  of  the  multitude  even  at 
the  present  time;  and  even  among  jurists  the  modern 
conception  of  neutrality  is  hardly  a  century  old.  If  the 
new  schools  of  jurisprudence  make  light  of  Natural  Law 
as  a  foundation  of  public  and  private  rights,  it  is  not 
certain  that  Grotius  may  not  yet  be  vindicated  as  repre- 
senting a  doctrine  at  least  as  clear  as  any  other  which 
has  been  substituted  for  it.  But,  finally,  to  all  these 
criticisms  it  may  be  answered,  that  no  great  thinker  can 
be  justly  estimated  except  in  relation  to  his  predecessors 
and  contemporaries.  Measured  by  these,  Grotius  stands 
alone  among  the  jurists  of  his  century  for  originality  of 
thought  and  power  of  exposition. 

V.  THE  INFLUENCE  OF  GROTIUS'S  WORK. 

It  was  during  his  sojourn  in  Hamburg  in  1633,  eight 
years  after  the  publication  of  his  *De  Jure, w  and  while  he 
was  still  suffering  from  painful  pecuniary  embarrassment, 
that  Europe  suddenly  awoke  to  a  sense  of  his  impor- 
tance; and,  almost  at  one  time,  Poland,  Denmark,  Spain, 
England,  and  Sweden  all  extended  friendly  invitations 
urging  him  to  enter  into  their  public  service.  His  fame 
as  a  jurist  had  become  international  and,  rudely  repelled 
by  his  native  Holland,  he  became  the  center  of  Euro- 
pean interest.  Gustavus  Adolphus  had  placed  the  work 
of  Grotius  along  side  his  Bible  under  his  soldier's  pillow, 
as  he  prosecuted  his  campaigns  in  the  Thirty  Years'  War. 
The  first  edition  of  that  work,  written  in  Latin,  the 


12  THE   RIGHTS   OF   WAR  AND   PEACE 

cosmopolitan  language  of  learned  Europe,  had  been 
quickly  exhausted  and  widely  scattered.  Another  had 
soon  been  called  for  at  Paris,  but  the  death  of  Buon,  the 
publisher,  created  obstacles  to  its  appearance.  A  second 
edition  had  appeared  at  Frankfort  in  1626,  another  at 
Amsterdam  in  1631,  and  still  another  with  notes  by  the 
author  in  1632.  The  book  had  aroused  the  thought  of 
kings  as  well  as  of  scholars,  and  in  the  circles  of  high 
influence  everywhere  in  Europe  the  name  of  Grotius  had 
become  well  known.  His  book  had  excited  the  most 
opposite  sentiments  and  awakened  the  most  contradictory 
judgments,  but  among  lawyers  and  statesmen  its  recep- 
tion was  from  the  first  generally  marked  by  admiration. 
In  spite  of  exile,  poverty,  and  misfortune,  Grotius  had 
become  a  European  celebrity  and  was  about  to  enter  into 
the  reward  of  his  labors.  He  had  created  a  code  for 
war  and  a  programme  of  peace,  and  henceforth  no 
statesman  could  afford  to  neglect  him. 

Gustavus  Adolphus,  the  king  of  Sweden,  before  his 
death  on  the  battlefield  of  Liitzen,  had  commended  Gro- 
tius to  his  great  Chancellor,  Oxenstiern.  By  the  death 
of  Gustavus  the  Chancellor  had,  in  1633,  recently  come 
into  the  regency  of  the  kingdom  at  a  critical  moment 
when  a  retreat  from  the  bitter  contest  with  the  Empire 
seemed  to  be  foredoomed  unless  prevented  by  the  sup- 
port and  friendship  of  France.  Recalling  the  commen- 
dation of  the  late  king,  Oxenstiern  sought  and  found 
in  Grotius  an  ambassador  of  Sweden  to  negotiate  a  new 
Franco- Swedish  alliance.  Accepting  this  appointment  in 
1634,  Grotius  arrived  at  Paris  on  his  diplomatic  mission 
on  March  2d,  1635. 

Richelieu,  having  failed  to  draw  the  great  jurist  into 
the  orbit  of  his  influence  as  a  satellite,  resented  his  ap- 
pearance in  a  character  so  influential  and  honorable  as 
that  of  ambassador  of  Sweden,  and  Grotius  made  little 
progress  in  his  negotiation.  Preoccupied  with  literature, 
he  took  more  interest  in  the  composition  of  a  sacred 
tragedy  on  <(  The  Flight  into  Egypt "  than  in  reminding 
France  of  the  existing  treaty  of  Heilbronn  or  consolidat- 
ing the  new  Franco-Swedish  alliance.  Where  Grotius  the 
theorist  failed,  Oxenstiern,  the  practical  statesman,  by  a 
few  dexterous  strokes  of  diplomacy  during  a  brief  visit 
to  Paris,  easily  succeeded;  and  the  ambassador's  mission 
was  simplified  to  the  r61e  of  a  mere  observer  and  re- 
porter of  occurrences. 


INTRODUCTION  13 

By  taste,  nature,  and  training-,  Grotius  was  a  jurist  and 
jiot  a  diplomatist,  and  he  soon  realized  that  the  two  vo- 
cations, if  not  diametrically  opposed,  are  at  least  sepa- 
rated from  each  other  by  a  vast  interval.  His  diplomatic 
correspondence  betrays  the  keen  observer  and  the  con- 
scientious moralist  rather  than  the  accomplished  negoti- 
ator. Among  the  observations  recorded  in  his  dispatches, 
one  may  be  quoted  as  an  example  of  his  penetration 
and  his  humor.  Speaking  of  the  Dauphin,  the  future 
Louis  XIV,  he  says:  "His  frightful  and  precocious  avid- 
ity is  a  bad  omen  for  neighboring  peoples;  for  he  is  at 
present  on  his  ninth  nurse,  whom  he  is  rending  and 
murdering  as  he  has  the  others!  }) 

It  is  painful  to  behold  the  great  father  of  international 
jurisprudence  descending  in  his  dispatches  to  petty  de- 
tails of  precedence  and  alienating  from  himself  the  sym- 
pathies of  his  colleagues  by  ridiculous  ceremonial 
pretensions.  He  would  no  longer  visit  Mazarin,  because 
the  Cardinal  insisted  on  calling  him  EMINENCE  instead  of 
EXCELLENCE;  Grotius  considering  this  distinction  of  terms 
a  slight  upon  his  rank  as  ambassador.  So  persistent 
was  he  in  these  follies  and  so  rancorous  were  the  feuds 
that  the  apostle  of  peace  elicited  that,  in  December,  1636, 
less  than  two  years  after  his  arrival  at  Paris,  he  advised 
Sweden  to  send  to  France  a  simple  Chargt  d' Affaires, 
instead  of  an  ambassador,  in  order  to  restore  diplomatic 
relations. 

His  quarrels  concerning  precedence,  which  rendered 
him  an  object  of  ridicule  at  the  French  Court,  were  not 
the  only  griefs  of  the  ambassador  of  Sweden.  In- 
adequately recompensed,  he  was  obliged  to  wait  two 
years  for  his  salary  and  finally,  being  reduced  to  a 
condition  in  which  he  could  no  longer  maintain  exist- 
ence otherwise,  he  was  compelled  to  demand  of  the  royal 
treasury  of  France  a  part  of  the  subsidies  promised  to 
the  army  of  his  adopted  country.  Weary  of  his  impor- 
tunities, the  French  government  repeatedly  requested  his 
recall.  Disgusted  with  his  mission,  Grotius  at  last  aban- 
doned the  duties  of  his  office  to  the  intriguing  adven- 
turer, Cerisante,  who  was  sent  to  aid  him,  and  buried  him- 
self in  his  books  until  his  return  to  Sweden  at  his  own 
request  in  1645. 

Queen  Christina  of  Sweden,  a  patroness  of  scholars, 
desirous  of  aiding  Grotius  and  of  retaining  him  in  the 
service  of  her  kingdom,  made  many  offers  and  promises, 


14  THE   RIGHTS   OF  WAR   AND   PEACE 

but  their  execution  being  deferred,  he  became  impatient 
of  his  lot,  refused  a  position  as  counselor  of  state,  and 
resolved  to  leave  the  country.  His  plan  to  abandon 
Stockholm  secretly  was  prevented  by  a  messenger  of  the 
queen  who  followed  him  to  the  port  where  he  intended 
to  embark  and  induced  him  to  return  for  a  farewell 
audience.  With  a  handsome  present  of  money  and  silver 
plate  he  took  passage  on  a  vessel  placed  at  his  disposition 
to  convey  him  to  Liibeck.  Off  the  coast  near  Dantzic  a 
violent  tempest  arose.  On  the  i;th  of  August,  1645,  the 
vessel  was  driven  ashore  and  Grotius,  overcome  by  his 
trying  experiences,  was  taken  ill  at  Rostock,  where  a  few 
days  later  he  passed  away. 

The  later  years  of  his  life  had  been  chiefly  devoted  to 
plans  for  the  establishment  of  peace  in  the  religious 
world,  whose  dissensions  gave  him  great  distress  of 
mind. 

The  country  of  his  birth,  which  had  so  long  denied 
him  citizenship,  received  him  at  last  to  the  silent  hospi- 
tality of  the  tomb.  His  body  was  taken  to  Delft,  his 
native  town,  where  his  name  is  now  held  in  grateful 
reverence. 

At  the  time  when  Grotius  left  Stockholm,  the  last  of 
the  plenipotentiaries  had  arrived  at  Miinster  and  Osna- 
briick  to  attend  the  great  European  congress  convoked 
to  terminate  the  hostilities  of  the  Thirty  Years'  War.  It 
is  a  tradition,  but  incapable  of  satisfactory  proof,  that  it 
was  with  the  purpose  of  being  present  at  the  councils  of 
this  congress  that  the  author  of  *De  Jure  Belli  ac  Pads w 
left  Sweden  for  Germany.  However  this  may  be,  it  is 
certain  that  the  mediation  of  the  king  of  Denmark  at 
Osnabriick  and  of  the  papal  legate  at  Miinster,  though 
unsuccessful,  was  in  accordance  with  the  idea  of  Grotius 
expressed  in  the  words :  (<  It  would  be  useful,  and  indeed 
it  is  almost  necessary,  that  certain  congresses  of  Christian 
powers  should  be  held,  in  which  controversies  that  have 
arisen  among  some  of  them  may  be  decided  by  others 
who  are  not  interested.*  The  immediate  establishment 
of  an  international  tribunal,  evidently  contemplated  in 
this  suggestion,  was  not  in  harmony  with  the  temper  of 
those  times;  but  it  cannot  be  doubted  that  the  Peace  of 
Westphalia,  whose  treaties  were  to  form  a  code  of  public 
law  for  Europe,  was  to  a  great  degree  an  embodiment 
of  the  principles  which  Grotius  was  the  first  to  enun- 
ciate. 


INTRODUCTION  15 

His  *De  Jure  Belli  ac  Pads w  had  already  become  a 
classic  even  before  the  author's  death,  and  special  pro- 
fessorships were  soon  founded  in  the  universities  to  ex- 
pound its  principles.  It  would  be  tedious  to  name  the 
numerous  editions,  translations,  and  commentaries  which 
have  given  it  an  exceptional  place  in  the  literature  of 
Europe.  This  task  has  been  in  part  performed,  however, 
by  Dr.  Rogge  in  his  <(  Bibliotheca  Grotiana*  published  at 
The  Hague  in  1883,  and  intended  to  be  a  full  bibliography 
of  Grotius's  works.  The  whole  number  of  titles  included 
is  462,  but  they  do  not  comprise  the  writings  of  the 
generations  of  jurists  who  have  been  inspired  by  the 
great  master  or  of  the  critics  and  biographers  who  have 
discussed  his  life  and  work. 

Tardily,  but  with  full  contrition  for  the  bitter  wrong 
done  to  one  of  her  greatest  and  noblest  sons,  the  memory 
of  Grotius  has  received  from  "his  native  land  abundant 
recognition  and  commemoration.  The  appropriate  tomb 
that  marks  his  resting  place  in  the  Nieuwe  Kerk  at 
Delft,  symbolical  of  his  learning,  genius,  and  renown, 
was  erected  in  1781.  On  the  iyth  of  September,  1886,  a 
noble  statue  of  the  great  jurist  was  unveiled  in  the 
public  square  of  his  native  town  in  front  of  the  church 
which  contains  his  tomb.  Thus,  more  than  a  century 
after  his  death,  and  again  still  another  century  later, 
Holland  has  paid  her  tribute  of  respect  to  her  illustrious 
citizen. 

The  later  years  have  also  brought  new  honors  to  Gro- 
tius's feet.  At  the  recent  Peace  Conference  at  The 
Hague  was  completed  the  great  structure  of  international 
comity  whose  corner  stone  was  laid  by  him  in  1625.  It 
was  most  fitting  that  an  international  congress  called  in 
the  interest  of  peace  should  blend  with  the  negotiation 
of  conventions  for  the  pacific  settlement  of  disputes  be- 
tween nations  by  a  permanent  tribunal,  and  for  the 
amelioration  of  the  laws  of  war,  a  celebration  of  the 
distinguished  writer  whose  great  thought  had  at  last 
borne  such  precious  fruits.  In  pursuance  of  instructions 
received  from  the  Secretary  of  State,  the  United  States 
Commission  invited  their  colleagues  in  the  congress,  the 
heads  of  the  Dutch  universities,  and  the  high  civic  au- 
thorities to  join  with  them  in  observing  the  4th  of 
July  by  celebrating  the  memory  of  the  great  jurist. 
With  appropriate  exercises  in  the  apse  of  the  old  church, 
near  the  monument  of  Grotius  and  mausoleum  of  William 


1 6  THE   RIGHTS   OF   WAR  AND   PEACE 

the  Silent,  the  representatives  of  twenty-six  nations 
gathered  to  do  him  honor.  A  beautiful  commemorative 
wreath  of  silver  was  laid  upon  Grotius's  tomb  bearing 
the  inscription: 

TO 

THE  MEMORY  OF  HUGO  GROTIUS 

IN 

REVERENCE  AND  GRATITUDE 
FROM  THE  UNITED  STATES  OF  AMERICA 

ON  THE 
OCCASION  OF  THE  INTERNATIONAL  PEACE  CONFERENCE 

AT 

THE  HAGUE  JULY  4TH,  1899. 

An  eloquent  oration  by  the  Honorable  Andrew  D. 
White,  Ambassador  of  the  United  States  to  Germany, 
and  the  head  of  the  Commission,  followed  by  other  ap- 
propriate addresses,  recalled  the  debt  of  mankind  to  the 
author  of  ^De  Jure  Belli  ac  Pads  w/  and  thus  the  plenipo- 
tentiaries of  the  nineteenth  century  did  homage  to  the  ex- 
ile of  the  sixteenth  who  had  taught  the  world  that  even  in 
the  shock  and  storm  of  battle  humanity  cannot  escape  the 
dominion  of  its  own  essential  laws,  and  that  even  inde- 
pendent states  are  answerable  before  the  bar  of  human 
nature  for  obedience  to  principles  imposed  by  a  Power 
higher  than  the  prerogatives  of  princes  or  the  will  of 
nations. 


THE   RIGHTS 

OF 


WAR   AND    PEACE, 

INCLUDING 

THE  LAW  OF  NATURE  AND  OF  NATIONS. 


BOOK  I. 

CHAPTER   I. 

Of  War — Definition  of  War — Right,  of  Governors  and  of  the  gov- 
erned, and  of  equals —  Right  as  a  Quality  divided  into  Faculty  and 
Fitness — Faculty  denoting  Power,  Property,  and  Credit — Divided  into 
Private  and  Superior  —  Right  as  a  Rule,  natural  and  voluntary  —  Law 
of  Nature  divided  —  Proofs  of  the  Law  of  Nature  —  Division  of  Rights 
into  human  and  divine  —  Human  explained  —  Divine  stated — Mosaic 
Law  not  binding  upon  Christians. 

I.  THE  disputes  arising  among  those  who  are  held  together 
by  no  common  bond  of  civil  laws  to  decide  their  dissen- 
sions, like  the  ancient  Patriarchs,  who  formed  no  national 
community,  or  the  numerous,    unconnected  communities, 
whether  under  the  direction  of   individuals,  or  kings,  or 
persons    invested  with  Sovereign  power,    as    the    leading 
men  in  an  aristocracy,  and  the    body  of   the  people  in  a 

i republican  government;  the  disputes,  arising  among  any 
of  these,  all  bear  a  relation  to  the  circumstances  of  war 
or  peace.  But  because  war  is  undertaken  for  the  sake  of 
peace,  and  there  is  no  dispute,  which  may  not  "give  rise 
to  war,  it  will  be  proper  to  treat  all  such  quarrels,  as 
commonly  happen,  between  nations,  as  an  article  in  the 

rights  of  war:  and  then  war  itself  will  lead  us  to  peace, 

•i  i 

as  to  its  proper  end. 

II.  In  treating  of    the    rights  of    war,    the    first    point, 
that  we  have  to  consider,  is,  what  is    war,  which  is   the 

*  (17) 


i8  HUGO   GROTIUS 

subject  of  our  inquiry,  and  what  is  the  right,  which  we 
seek  to  establish.  Cicero  styled  war  a  contention  by  force. 
But  the  practice  has  prevailed  to  indicate  by  that  name, 
not  an  immediate  action,  but  a  state  of  affairs;  so  that 
twar  is  the  state  of  contending  parties,  considered  as  such. 
This  definition,  by  its  general  extent,  comprises  those 
wars  of  every  description,  that  will  form  the  subject  of 
the  present  treatise.  Nor  are  single  combats  excluded 
from  this  definition.  For,  as  they  are  in  reality  more 
ancient  than  public  wars,  and  undoubtedly,  of  the  same 
nature,  they  may  therefore  properly  be  comprehended 
under  one  and  the  same  name.  This  agrees  very  well 
with  the  true  derivation  of  the  word.  For  the  Latin 
word,  Bellum,  WAR,  comes  from  the  old  word,  Duellum, 
a  DUEL,  as  Bonus  from  Duonus,  and  Bis  from  Duis, 
Now  Duellum  was  derived  from  Duo;  and  thereby  implied 
a  difference  between  two  persons,  in  the  same  sense  as 
we  term  peace,  UNITY,  from  Unitas,  for  a  contrary  reason. 
So  the  Greek  word,  jroAe/ioy,  commonly  used  to  signify  war, 
expresses  in  its  original,  an  idea  of  multitude.  The 
ancient  Greeks  likewise  called  it  ^u^,  which  imports  a  DIS- 
UNION of  minds;  just  as  by  the  term  Suy,  they  meant  the 
DISSOLUTION  of  the  parts  of  the  body.  Nor  does  the  use 
of  the  word,  WAR,  contradict  this  larger  acceptation  of  it. 
For  though  some  times  it  is  only  applied  to  the  quarrels 
of  states,  yet  that  is  no  objection,  as  it  is  evident  that  a 
general  name  is  often  applied  to  some  particular  object, 
entitled  to  peculiar  distinction.  Justice  is  not  included 

in  the  definition  of   war,  because'  the  very    point    to   be 
ft  '  J    c 

decided  is,  whether  any  war  be  just,  and  what  war  may 
be  so  called*.  Therefore  we  must  make  a  distinction  be- 
tween war  itself,  and  the  justice  of  it. 

III.     As  the  Rights  of  War  is  the  title,  by  which  this 
^       treatise  is  distinguished,  the  first  inquiry,  as  it  has  been 
^a    already   observed,  is,  whether   any    war   be   just,  and,  in 
S  the  next  place,  what  constitutes  the  justice  of   that  war. 

For,    in    this    place,    right    signifies    nothing   more   than 
what  is  just,  and  that,  more  in  a  negative   than  a  posi- 
tive sense;   so   that    RIGHT   is    that,  which  is   not  unjust. 
i         ;     Now   any   thing    is    unjust,    which    is    repugnant    to    the 
nature  of   society,  established   among   rational    creatures. 
Thus  for  instance,  to  deprive  another  of  what  belongs  to 
7  him,  merely   for  one's  own   advantage,  is   repugnant   to 
the  law  of  nature,  as  Cicero  observes  in  the  fifth  Chapter 
of  his   third   book  of   offices;   and,  by  way  of  proof,  he 


THE   RIGHTS  OF   WAR   AND   PEACE  19 

says   that,  if   the   practice  were   general,  all   society  and    \c\    ** 
intercourse  among  men  must  be  overturned.     Florentinus, 
the  Lawyer,  maintains   that  is   impious    for   one   man  to       »*/^L^'X 
form  designs   against   another,  as  nature  has  established 
a  degree  of  kindred  amongst  us.     On  this  subject,  Seneca 
remarks   that,  as   all   the   members  of    the   human  body 
agree  among  themselves,  because  the  preservation  of  each 
conduces  to  the  welfare  of  the  whole,  so  men  should  for- 
bear from  mutual  injuries,  as  they  were  born  for  society, 
which   cannot    subsist   unless   all   the  parts  of  it  are  de- 
fended by  mutual    forbearance    and    good   will.     But  as 
there  is  one  kind  of  social  tie^founded^upon  an  equality, 
for  instance,  am'ong'Tlrotners,  citizens,  frien3s,  allies,  and 
another  on  pre-eminence,  as  Aristotle  styles  it,  subsisting 
betweenparentsanidcmUdren,  masters  and  servants,  sov-  •     /•»    /"} 
ereigns    and    subjects,  God    and   men.     So   justice   takes  -^i 
place  either  amongst   equals,  or  between  the  governing:'  J<  V  \*S 

fc^aaaa^  i<+*m,  i^^n  m^i    i.fcmi ,  |       <•?„.,._....  .  „  A    Bl  m^,,^-  inn^n  r  -n««« ,,,  ^  Tf,*m ,i__i— — ~  ^^*^^"-^*jMm  ,^  ^^ 

and  the   governed   parties,   notwithstanding   their  differ-  ^ 
ence  of   rank.     The    former   of   these,  if   I  am   not   mis- 
taken, may  be  called  the  tight  of  equality,  and  the  latter 

**•»'•»«*««•»•*    ^'         Ij 
the  right  of  superiority.  *#  ^ 

IV.  There  is  another   signification  of  the  word  RIGHT, 
different  from  this,  but  yet  arising  from  it,  which  relates 
directly  to  the  person.     In  which  sense,  RIGHT  is  a  moral      *    ^ 
d   to   the   person,   justly   entitling  him  to"  'V 


possess  some  particular  privilege,  or  to  perform  some  y— 
Iparticular  act.  This  right  is  annexed  to  the  person, 
although  it  sometimes  follows  the  things,  as  the  services 
of  lands,  which  are  called  REAL  RIGHTS,  in  opposition 
to  those  merely  PERSONAL.  Not  because  these  rights  are 
not  annexed  to  persons,  but  the  distinction  is  made, 
because  they  belong  to  the  persons  only  who  possess 
some  particular  things.  This  moral  quality,  when  per- 
fect is  called  a  FACULTY;  when  imperfect,  an  APTITUDE. 
The  former  answers  to  the  ACT,  and  the  latter  to  the 
POWER,  when  we  speak  of  natural  things. 

tV.  Civilians  call  a  faculty  that  Right,  which  every  man 
lias  to  his  own;  but  we  shall  hereafter,  taking  it  in  its 
strict  and  proper  sense,  call  it  a  right.  This  right  com- 
prehends the  power,  that  we  have  over  ourselves,  which 
is  called  liberty,  and  the  power,  that  we  have  ^ 
as  that  of"  a  "father  over  his  children,  and  oiamaster 
over  his  slaves.  It  likewise  comprehends  property,  which 
is  either  complete  or  imperfect;  of  the  latter  kind  is  the 
use  or  possession  of  any  thing  without  the  property,  or 


20          .  HUGO   GROTIUS 

power  of  alienating  it,  or  pledges  detained  by  the  creditors 
till  payment  be  made.  There  is  a  third  signification, 
which  implies  the  power  of  demanding  what  is  due,  to 
which  the  obligation  upon  the  party  indebted,  to  discharge 
what  is  owing,  corresponds. 

VI.  Right,  strictly    taken,  is   again   twofold,    the    one, 
PRIVATE,  established  for  the  advantage  of  each  individual, 
the  other,   SUPERIOR,   as    involving-   the    claims,  which   the 
state    has  upon   individuals,   and    their   property,  for  the 
public  good.     Thus  the  Regal    authority  is  above  that  of 
a  father  and    a  master,  and  the  Sovereign  has  a   greater 
right  over  the  property  of  his  subjects,  where  the  public 
good    is   concerned,    than    the    owners    themselves   have. 
And  when  the  exigencies  of   the  state  require   a   supply, 
every    man    is   more   obliged   to    contribute   towards    it, 
than   to  satisfy  his  creditors. 

VII.  Aristotle  distinguishes  aptitude  or  capacity,  by  the 
name  of  worth   or  merit,  and  Michael  of  Ephesus,  gives 
the  epithet  of  SUITABLE  or  BECOMING  to  the  equality  estab- 
lished by  this  rule  of  merit. 

IX.*  There  is  also  a  third  signification  of  the  word 
Right,  which  has  the  same  meaning  as  Law,  taken  in  its 
most  extensive  sense,  to  denote  a  rule  of  moral  action, 
obliging  us  to  do  what  is  proper.  We  say  OBLIGING  us. 
For  the  best  counsels  or  precepts,  if  they  lay  us  under 
no  obligation  to  obey  them,  cannot  come  under  the 
denomination  of  law  or  right.  Now  as  to  permission,! 
it  is  no  act  of  the  law,  but  only  the  silence  of  the  law, 
it  however  prohibits  any  one  from  impeding  another  in 
doing  what  the  law  permits.  But  we  have  said,  the  law 
obliges  us  to  do  what  is  proper,  not  simply  what  is  just ; 
because,  under  this  notion,  right  belongs  to  the  substance 
not  only  of  justice,  as  we  have  explained  it,  but  of  all 
other  virtues.  Yet  from  giving  the  name  of  a  RIGHT  to 

*  The  eighth  Section  is  omitted,  the  greater  part  of  it  consisting  of 
verbal  criticism  upon  Aristotle's  notions  of  geometrical  and  arith- 
metical justice;  a  discussion  no  way  conducive  to  that  clearness  and 
simplicity,  so  necessary  to  every  didactic  treatise. —  TRANSLATOR. 

f  The  law,  by  its  silence,  permits  those  acts,  which  it  does  not 
prohibit.  Thus  many  acts,  if  they  are  not  evil  in  themselves,  are  no 
offence,  till  the  law  has  made  them  such.  Of  this  kind  are  many 
acts,  such  as  exporting  gold,  or  importing  certain  articles  of  trade; 
doing  certain  actions,  or  following  certain  callings,  without  the  requisite 
qualifications,  which  are  made  punishable  offences  by  the  Statute- 
Law.  Those  actions,  before  the  prohibition  was  enjoined  by  the  law, 
came  under  the  class  of  what  Grotius  calls  permissions. 


THE   RIGHTS  OF   WAR  AND   PEACE  21 

that,  which  is  PROPER,  a  more  general  acceptation  of  the 
word  justice  has  been  derived.  The  best  division  of 
right,  in  this  general  meaning,  is  to  be  found  in  Aristotle, 
who,  defining  one  kind  to  be  natural,  and  the  other 
voluntary,  calls  it  a  LAWFUL  RIGHT  in  the  strictest  sense 
of  the  word  law;  and  some  times  an  instituted  right. 
The  same  difference  is  found  among  the  Hebrews,  who, 
by  way  of  distinction,  in  speaking,  call  that  natural 
right,  PRECEPTS,  and  the  voluntary  right,  STATUTES:  the 
former  of  which  the  Septuagint  call  dinawfiaTa,  and  the 
latter  broXAs. 

X.  Natural  right  is  the  dictate  of  right  reason,  shew- 
ng  the  moral  turpitude,  or  moral  necessity,*  of  any  act 
:rom  its  agreement  or  disagreement  with  a  rational  na- 
iure,  and  consequently  that  such  an  act  is  either  forbid- 
den or  commanded  by  God,  the  author  of  nature.  The 
actions,  upon  which  such  a  dictate  is  given,  are  either 
binding  or  unlawful  in  themselves,  and  therefore  neces- 
sarily understood  to  be  commanded  or  forbidden  by  God. 
This  mark  distinguishes  natural  right,  not  only  from 
human  law,  but  from  the  law,  which  God  himself  has 
been  pleased  to  reveal,  called,  by  some,  the  voluntary 
divine  right,  which  does  not  command  or  forbid  things 
in  themselves  either  binding  or  unlawful,  but  makes  them 
unlawful  by  its  prohibition,  and  binding  by  its  command. 
But,  to  understand  natural  right,  we  must  observe  that 
some  things  are  said  to  belong  to  that  right,  not  prop- 
erly, but,  as  the  schoolmen  say,  by  way  of  accommoda- 
tion. These  are  not  repugnant  to  natural  right,  as  we 
have  already  observed  that  those  things  are  called  JUST, 
in  which  there  is  no  injustice.  Some  times  also,  by  a 
wrong  use  of  the  word,  those  things  which  reason  shews 
to  be  proper,  or  better  than  things  of  an  opposite  kind, 
although  not  binding,  are  said  to  belong  to  natural  right. 

We  must  farther  remark,  that  natural  right  relates  not 
only  to  those  things  that  exist  independent  of  the  human 
will,  but  to  many  things,  which  necessarily  follow  the 
exercise  of  that  will.  Thus  property,  as  now  in  use,  was 
at  first  a  creature  of  the  human  will.  But,  after  it  was 
established,  one  man  was  prohibited  by  the  law  of  nature 
from  seizing  the  property  of  another  against  his  will. 
Wherefore,  Paulus  the  Lawyer  said,  that  theft  is  ex- 
pressly forbidden  by  the  law  of  nature.  Ulpian  condemns 

*  By  moral  necessity  is  meant  nothing  more  than  that  the  Laws  of 
Nature  must  always  bind  us. 


22  HUGO    GROTIUS 

it  as  infamous  in  its  own  nature ;  to  whose  authority  that 
of  Euripides  may  be  added,  as  may  be  seen  in  the  verses 
of  Helena: 

(<For  God  himself  hates  violence,  and  will  not  have  us 
to  grow  rich  by  rapine,  but  by  lawful  gains.  That 
abundance,  which  is  the  fruit  of  unrighteousness,  is  an 
abomination.  The  air  is  common  to  men,  the  earth  also, 
where  every  man,  in  the  ample  enjoyment  of  his  posses- 
sion, must  refrain  from  doing  violence  or  injury  to  that 
of  another.* 

Now  the  Law  of  Nature  is  so  unalterable,  that  it  can- 
not be  changed  even  by  God  himself.  For  although  the 
power  of  God  is  infinite,  yet  there  are  some  things,  to 
which  it  does  not  extend.  Because  the  things  so  ex- 
pressed would  have  no  true  meaning,  but  imply  a  con- 
tradiction. Thus  two  and  two  must  make  four,  nor  is  it 
possible  to  be  otherwise;  nor,  again,  can  what  is  really 
evil  not  be  evil.  And  this  is  Aristotle's  meaning,  when 
he  says,  that  some  things  are  no  sooner  named,  than  we 
discover  their  evil  nature.  For  as  the  substance  of  things 
in  their  nature  and  existence  depends  upon  nothing  but 
themselves;  so  there  are  qualities  inseparably  connected 
with  their  being  and  essence.  Of  this  kind  is  the  evil 
of  certain  actions,  compared  with  the  nature  of  a  reason- 
able being.  Therefore  God  himself  suffers  his  actions  to 
be  judged  by  this  rule,  as  may  be  seen  in  the  xviiith 
chap,  of  Gen.  25.  Isa.  v.  3.  Ezek.  xviii.  25.  Jer.  ii.  9. 
Mich.  vi.  2.  Rom.  ii.  6.,  iii.  6.  Yet  it  sometimes  hap- 
pens that,  in  those  cases,  which  are  decided  by  the  law 
of  nature,  the  undiscerning  are  imposed  upon  by  an 
appearance  of  change.  Whereas  in  reality  there  is  no 
change  in  the  unalterable  law  of  nature,  but  only  in  the 
things  appointed  by  it,  and  which  are  liable  to  variation. 
For  example,  if  a  creditor  forgive  me  the  debt,  which  I 
owe  him,  I  am  no  longer  bound  to  pay  it,  not  because 
the  law  of  nature  has  ceased  to  command  the  payment 
of  a  just  debt,  but  because  my  debt,  by  a  release,  has 
ceased  to  be  a  debt.  On  this  topic,  Arrian  in  Epictetus 
argues  rightly,  that  the  borrowing  of  money  is  not  the 
only  requisite  to  make  a  debt,  but  there  must  be  the 
additional  circumstance  of  the  loan  remaining  undis- 
charged. Thus  if  God  should  command  the  life,  or 
property  of  any  one  to  be  taken  away,  the  act  would  not 
authorise  murder  or  robbery,  words  which  always  include 
a  crime.  But  that  cannot  be  murder  or  robbery,  which 


THE   RIGHTS   OF  WAR  AND   PEACE  23 

is  done  by  the  express  command  of  Him,  who  is  the 
sovereign  Lord  of  our  lives  and  of  all  things.  There 
are  also  some  things  allowed  by  the  law  of  nature,  not 
absolutely,  but  according  to  a  certain  state  of  affairs. 
Thus,  by  the  law  of  nature,  before  property  was  intro- 
duced, every  one  had  a  right  to  the  use  of  whatever  he 
found  unoccupied;  and,  before  laws  were  enacted,  to 
avenge  his  personal  injuries  by  force. 

XL  The  distinction  found  in  the  books  of  the  Roman 
Law,  assigning  one  unj^iange.aJ3le- xig^t  to  brutes  in  com- 
mon with  man,  which  in  a  more  limited  sense  they  call 
the  law  of  nature,  and  appropriating  another  to  men, 
which  they  frequently  call  the  Law  of  Nations,  is  scarcely 
of  any  real  use.  For  no  beings,  except  those  that  can 
form  general  maxims,  are  capable  of  possessing  a  right, 
which  Hesiod  has  placed  in  a  clear  point  of  view,  ob- 
serving <(that  the  supreme  Being  has  appointed  laws  for 
men;  but  permitted  wild  beasts,  fishes,  and  birds  to 
devour  each  other  for  food. w  For  they  have  nothing  like 
justice,  the  best  gift,  bestowed  upon  men. 

Cicero,  in  his  first  book  of  offices,  says,  we  do  not  talk 
'of  the  justice  of  horses  or  lions.  In  conformity  to  which, 
Plutarch,  in  the  life  of  Cato  the  elder,  observes,  that  we 
are  formed  by  nature  to  use  Jaw  and  justice  towards  men 
only.  In  addition  to  the  above,  Lactantius  may  be  cited, 
who,  in  his  fifth  book,  says  that  in  all  animals  devoid  of 
reason  we  see  a  natural  bias  of  self-love.  For  they  hurt 
others  to  benefit  themselves;  because  they  do  not  know 
,the  evil  of  doing  wilful  hurt.  But  it  is  not  so  with  man, 
who,  possessing  the  knowledge  of  good  and  evil,  refrains, 
\even  with  inconvenience  to  himself,  from  doing  hurt. 
Polybius,  relating  the  manner  in  which  men  first  entered 
into  society,  concludes,  that  the  injuries  done  to  parents 
or  benefactors  inevitably  provoke  the  indignation  of  man- 
kind, giving  an  additional  reason,  that  as  understanding 
and  reflection  form  the  great  difference  between  men  and 
other  animals,  it  is  evident  they  cannot  transgress  the 
bounds  of  that  difference  like  other  animals,  without  ex- 
citing universal  abhorrence  of  their  conduct.  But  if  ever 
'  justice  is  attributed  to  brutes,  it  is  done  improperly,  from 
some  shadow  and  trace  of  reason  they  may  possess.  But 
it  is  not  material  to  the  nature  of  right,  whether  the 
actions  appointed  by  the  law  of  nature,  such  as  the  care 
of  our  offspring,  are  common  to  us  with  other  animals  or 
not,  or,  like  the  worship  of  God,  are  peculiar  to  man. 


24  HUGO   GROTIUS 

XII.  The  existence  of  the  Law  of  Nature  is  proved  by 
two  kinds  of  argument,  a  priori,  and  a  posteriori,  the 
former  a  more  abstruse,  and  the  latter  a  more  popular 
method  of  proof.  We  are  said  to  reason  a  priori,  when 
we  show  the  agreement  or  disagreement  of  any  thing 
with  a  reasonable  and  social  nature;  but  a  posteriori, 
when  without  absolute  proof,  but  only  upon  probability, 
any  thing  is  inferred  to  accord  with  the  law  of  nature,  be- 
cause it  is  received  as  such  among  all,  or  at  least  the 
more  civilized  nations.  For  a  general  effect  can  only 
arise  from  a  general  cause.  Now  scarce  any  other  cause 
can  be  assigned  for  so  general  an  opinion,  but  the  com- 
mon sense,  as  it  is  called,  of  mankind.  There  is  a  sen- 
tence of  Hesiod  that  has  been  much  praised,  that 
opinions  which  have  prevailed  amongst  many  nations,  must 
have  some  foundation.  Heraclitus,  establishing  common 
reason  as  the  best  criterion  of  truth,  says,  those  things 
are  certain  which  generally  appear  so.  Among  other 
authorities,  we  may  quote  Aristotle,  who  says  it  is  a 
strong  proof  in  our  favour,  when  all  appear  to  agree 
with  what  we  say,  and  Cicero  maintains  that  the  con- 
sent of  all  nations  in  any  case  is  to  be  admitted  for  the 
law  of  nature.  Seneca  is  of  the  same  opinion,  any  thing, 
says  he,  appearing  the  same  to  all  men  is  a  proof  of  its 
truth.  Quintilian  says,  we  hold  those  things  to  be  true, 
in  which  all  men  agree.  We  have  called  them  the  more 
civilized  nations,  and  not  without  reason.  For,  as  Por- 
phyry well  observes,  some  nations  are  so  strange  that 
no  fair  judgment  of  human  nature  can  be  formed  from 
them,  for  it  would  be  erroneous.  Andronicus,  the  Rho- 
dian  says,  that  with  men  of  a  right  and  sound  under- 
standing, natural  justice  is  unchangeable.  Nor  does  it 
alter  the  case,  though  men  of  disordered  and  perverted 
minds  think  otherwise.  For  he  who  should  deny  that 
honey  is  sweet,  because  it  appears  not  so  to  men  of  a 
distempered  taste,  would  be  wrong.  Plutarch  too  agrees 
entirely  with  what  has  been  said,  as  appears  from  a 
passage  in  his  life  of  Pompey,  affirming  that  man  neither 
was,  nor  is,  by  nature,  a  wild  unsociable  creature.  But 
it  is  the  corruption  of  his  nature  which  makes  him  so: 
yet  by  acquiring  new  habits,  by  changing  his  place,  and 
way  of  living,  he  may  be  reclaimed  to  his  original  gen- 
tleness. Aristotle,  taking  a  description  of  man  from  his 
peculiar  qualities,  makes  him  an  animal  of  a  gentle 
nature,  and  in  another  part  of  his  works,  he  observes, 


THE  RIGHTS  OF   WAR  AND   PEACE  25 

that  in  considering  the  nature  of  man,  we  are  to  take 
our  likeness  from  nature  in  its  pure,  and  not  in  its 
corrupt  state. 

XIII.  It    has    been    already    remarked,    that   there   is 
another   kind    of   right,    which    is    the    voluntary    right, 
deriving  its   origin   from   the    will,  and  is   either  human 
or  divine. 

XIV.  We  will  begin  with  the   human   as   more   gener- 
ally known.     Now  this  is  either  a  civil  right,    or  a  right 
more  or  less   extensive   than   the   civil   right.     The   civil 
right  is  that  which  is  derived  from  the  civil  power.     The 
civil  power  is  the  sovereign  power  of  the  state.     A  state 
is  a  perfect  ^body  of  free  men,  united  together  in  order 
to  enjoy  common  rights   and"*  advantages.     The  less  ex- 
tensive  right,    and   not    derived     from    the    civil    power 
itself,  although  subject  to  it,  is  various,    comprehending 
the  authority  of  parents  over  children,  masters  over  serv- 
ants, and  the    like.     But   the    law    of   nations  is  a  more 

:  extensive  right,  deriving  its  authority  from   the   consent 
of  all,  or  at  least  of  many  nations. 

It  was  proper  to  add  MANY,  because  scarce  any  right 
can  be  found  common  to  all  nations,  except  the  law  of 
nature,  which  itself  too  is  generally  called  the  law  of 
nations.  Nay,  frequently  in  one  part  of  the  world,  that 
is  held  for  the  law  of  nations,  which  is  not  so  in  another. 
Now  this  law  of  nations  is  proved  in  the  same  man- 
ner as  the  unwritten  civil  law,  and  that  is  by  the 
continual  experience  and  testimony  of  the  Sages  of  the 
Law.  For  this  law,  as  Dio  Chrysostom  well  observes, 
is  the  discoveries  made  by  experience  and  time.  And  in 
this  we  derive  great  advantage  from  the  writings  of  emi- 
nent historians. 

XV.  The  very  meaning  of  the  words   divine  voluntary 
right,    shows    that   it   springs    from   the   divine   will,    by 
which  it  is  distinguished  from  natural  law,  which,   it  has 
already  been  observed,    is   called   divine   also.     This  law 
admits  of  what  Anaxarchus  said,  as    Plutarch    relates   in 
the  life  of  Alexander,  though  without  sufficient  accuracy, 

/that  God  does  not  will  a  thing,  because  it  is  just,  but 
I  that  it  is  just,  or  binding,  because  God  wills  it.  Now 
this  law  was  given  either  to  mankind  in  general,  or  to 
one  particular  people.  We  find  three  periods,  at  which 
it  was  given  by  God  to  the  human  race,  the  first  of 
which  was  immediately  after  the  creation  of  man,  the 
second  upon  the  restoration  of  mankind  after  the  flood, 


26  HUGO   GROTIUS 

and  the  third  upon  that  more  glorious  restoration  through 
Jesus  Christ.  These  three  laws  undoubtedly  bind  all 
men,  as  soon  as  they  come  to  a  sufficient  knowledge  of 
them. 

XVI.  Of  all  nations  there  is  but  -one,  to  which  God 
particularly  vouchsafed  to  give  laws,  and  that  was  the 
people  of  Israel,  whom  Moses  thug  addresses  in  the 
fourth  Chap,  of  Deuteronomy,  ver.  7.  "What  nation  is 
there  so  great  who  hath  God  so  nigh  unto  them,  as  the 
Lord  our  God  is  in  all  things  that  we  call  upon  him  for  ? 
And  what  nation  is  there  so  great,  who  have  statutes  and 
judgments  so  righteous,  as  all  this  law,  which  I  set  before 
you  this  day!*  And  the  Psalmist  in  the  cxlvii.  Psalm, 
<(  God  shewed  his  word  unto  Jacob,  his  statutes  and  ordi- 
nances unto  Israel.  He  hath  not  dealt  so  with  any  nation, 
and  as  for  his  judgments  they  have  not  known  them." 
Nor  can  we  doubt  but  that  those  Jews,  with  whom  we 
may  class  Tryphon  in  his  dispute  with  Justin,  are  mis- 
taken, who  suppose  that  even  strangers,  if  they  wish  to 
be  saved,  must  submit  to  the  yoke  of  the  Mosaic  Law. 
For  a  law  does  not  bind  those,  to  whom  it  has  not  been 
given.  But  it  speaks  personally  to  those,  who  are  imme- 
diately under  it.  Hear  O  Israel,  and  we  read  everywhere 
of  the  covenant  made  with  them,  by  which  they  became 
the  peculiar  people  of  God.  Maimonides  acknowledges 
and  proves  the  truth  of  this  from  the  xxxiii.  Chapter  and 
fourth  verse  of  Deuteronomy. 

But  among  the  Hebrews  themselves  there  were  always 
living  some  strangers,  persons  devout  and  fearing  God, 
such  was  the  Syrophoenician  woman,  mentioned  in  the 
Gospel  of  St.  Matthew,  xv.  22.  Cornelius  the  Centurion. 
Acts.  x.  the  devout  Greeks,  Acts  xviii.  6.  Sojourners,  or 
strangers,  also  are  mentioned.  Levit.  xxv.  47.  These, 
as  the  Hebrew  Rabbis  themselves  inform  us,  were  obliged 
to  observe  the  laws  given  to  Adam  and  Noah,  to  abstain 
from  idols  and  blood,  and  other  things,  that  were  pro- 
hibited; but  not  in  the  same  manner  to  observe  the  laws 
peculiar  to  the  people  of  Israel.  Therefore  though  the 
Israelites  were  not  allowed  to  eat  the  flesh  of  a  beast, 
that  had  died  a  natural  death;  yet  the  strangers  living 
among  them  were  permitted.  Deut.  xiv.  21.  Except  in 
some  particular  laws,  where  it  was  expressly  said,  that 
strangers  no  less  than  the  native  inhabitants  were  obliged 
to  observe  them.  Strangers  also,  who  came  from  other 
countries,  and  were  not  subject  to  the  Jewish  laws,  might 


THE    RIGHTS  OF   WAR  AND   PEACE  27 

worship  God  in  the  temple  of  Jerusalem,  but  standing  in 
a  place  separate  and  distinct  from  the  Israelites.  I.  Kings 
viii.  41.  2  Mac.  iii.  35.  John  xii  20.  Acts  viii.  27.  Nor 
did  Elisha  ever  signify  to  Naaman  the  Syrian,  nor  Jonas 
to  the  Ninevites,  nor  Daniel  to  Nebuchadnezzar,  nor  the 
other  Prophets  to  the  Tyrians,  the  Moabites,  the  Egyp- 
tians, to  whom  they  wrote,  that  it  was  necessary  for  them 
to  adopt  the  Mosaic  Law. 

What  has  been  said  of  the  whole  law  of  Moses  applies 
to  circumcision,  which  was  a  kind  of  introduction  to  the 
law.  Yet  with  this  difference  that  the  Israelites  alone 
were  bound  by  the  Mosaic  Law,  but  the  whole  posterity 
of  Abraham  by  the  law  of  circumcision.  From  hence 
we  are  informed  by  Jewish  and  Greek  Historians,  that 
the  Idumaeans,  or  Edomites  were  compelled  by  the  Jews 
to  be  circumcised.  Wherefore  there  is  reason  to  believe 
that  the  numerous  nations,  who,  besides  the  Israelites, 
practised  circumcision,  and  who  are  mentioned  by  Herodo- 
tus, Strabo,  Philo,  Justin,  Origen,  Clemens,  Alexandrinus, 
Epiphanius,  and  Jerom,  were  descended  from  Ishmael, 
Esau,  or  the  posterity  of  Keturah.  But  what  St.  Paul 
says,  Rom.  ii.  14.  holds  good  of  all  other  nations;  that 
the  Gentiles,  not  having  the  law,  yet  doing  by  nature 
the  things  contained  in  the  law,  become  a  law  to  them- 
selves. Here  the  word  nature  may  be  taken  for  the 
primitive  source  of  moral  obligation;  or,  referring  it  to 
the  preceding  parts  of  the  Epistle,  it  may  signify  the 
knowledge,  which  the  Gentiles  acquired  of  themselves 
without  instruction,  in  opposition  to  the  knowledge  de- 
rived to  the  Jews  from  the  law,  which  was  instilled 
into  them  from  their  cradle,  and  almost  from  their  birth. 
"So  the  Gentiles  show  the  work,  or  the  moral  precepts 
of  the  law,  written  in  their  hearts,  their  consciences  also 
bearing  witness,  and  their  thoughts  the  mean  while 
accusing  or  else  excusing  one  another."  And  again  in 
the  26th  ver. ;  "If  the  uncircumcision  keep  the  righteous- 
ness of  the  law,  shall  not  his  uncircumcision  be  counted 
for  circumcision  ? w  Therefore  Ananias,  the  Jew,  as 
we  find  in  the  history  of  Josephus,  very  properly 
taught  Tzates,  or  as  Tacitus  calls  him,  Ezates,  the 
Adiabenian,  that  even  without  circumcision,  God  might 
be  rightly  worshipped  and  rendered  propitious.  For 
though  many  strangers  were  circumcised,  among  the 
Jews,  and  by  circumcision  bound  themselves  to  observe 
the  law,  as  St.  Paul  explains  it  in  Gal.  v.  3. ;  they  did 


28  HUGO   GROTIUS 

it  partly  to  obtain  the  freedom  of  the  country;  for  pros- 
elytes called  by  the  Hebrews,  proselytes  of  righteous- 
ness, enjoyed  equal  privileges  with  the  Israelites.  Num. 
xv. :  and  partly  to  obtain  a  share  in  those  promises,  which 
were  not  common  to  mankind,  but  peculiar  to  the  Jewish 
people,  although  it  cannot  be  denied,  that  in  later  ages 
an  erroneous  opinion  prevailed,  that  there  was  no  sal- 
vation out  of  the  Jewish  pale.  Hence  we  may  infer, 
that  we  are  bound  by  no  part  of  the  Levitical  law, 
strictly  and  properly  so  called;  because  any  obligation, 
beyond  that  arising  from  the  law  of  nature,  must  pro- 
ceed from  the  express  will  of  the  law-giver.  Now  it 
cannot  be  discovered  by  any  proof,  that  God  intended 
any  other  people,  but  the  Israelites  to  be  bound  by  that 
law.  Therefore  with  respect  to  ourselves,  we  have  no 
occasion  to  prove  an  abrogation  of  that  law ;  for  it  could 
never  be  abrogated  with  respect  to  those,  whom  it  never 
bound.  But  the  Israelites  were  released  from  the  cere- 
monial part,  as  soon  as  the  law  of  the  Gospel  was  pro- 
claimed; a  clear  revelation  of  which  was  made  to  one  of 
the  Apostles,  Acts  x.  15.  And  the  other  parts  of  the 
Mosaic  law  lost  their  peculiar  distinction,  when  the  Jews 
ceased  to  be  a  people  by  the  desolation  and  destruction 
of  their  city  without  any  hopes  of  restoration.  Indeed 
it  was  not  a  release  from  the  law  of  Moses  that  we,  who 
were  strangers  to  the  Commonwealth  of  Israel,  obtained 
by  the  coming  of  Christ.  But  as  before  that  time,  our 
hopes  in  the  goodness  of  God  were  obscure  and  uncertain, 
we  gained  the  assurance  of  an  express  covenant,  that 
we  should  be  united  in  one  Church  with  the  seed  of 
Israel,  the  children  of  the  patriarchs,  their  law,  that 
was  the  wall  of  separation  between  us,  being  broken 
down.  Eph.  ii.  14. 

XVII.  Since  then  the  law  given  by  Moses  imposes  no 
direct  obligation  upon  us,  as  it  has  been  already  shown, 
let  us  consider  whether  it  has  any  other  use  both  in  this 
inquiry  into  the  rights  of  war,  and  in  other  questions  of 
the  same  kind.  In  the  first  place,  the  Mosaic  law  shows 
that  what  it  enjoins  is  not  contrary  to  the  law  of  nature. 
For  since  the  law  of  nature  is  perpetual  and  unchange- 
able, nothing  contradictory  to  it  could  be  commanded  by 
God,  who  is  never  unjust.  Besides  the  law  of  Moses  is 
called  in  the  xix.  Psalm  an  undefiled  and  right  law,  and 
St.  Paul,  Rom.  vii.  12,  describes  it  to  be  holy,  just,  and 
good.  Its  precepts  are  here  spoken  of,  for  its  permis- 


THE  RIGHTS  OF  WAR  AND  PEACE       29 

sions  require  a  more  distinct  discussion.  For  the  bare 
permission,  signifying  the  removal  of  an  impediment,  or 
prohibition,  has  no  relation  to  the  present  subject.  A 
positive,  legal  permission  is  either  full,  granting  us  power 
to  do  some  particular  act  without  the  least  restriction,  or 
less  full,  only  allowing  men  impunity  for  certain  actions, 
and  a  right  to  do  them  without  molestation  from  others. 
From  the  permission  of  the  former  kind  no  less  than 
from  a  positive  precept,  it  follows  that  what  the  law 
allows,  is  not  contrary  to  the  law  of  nature.*  But  with 
regard  to  the  latter  kind  of  permission,  allowing  impunity 
for  certain  acts,  but  not  expressly  authorizing  them,  we 
cannot  so  readily  conclude  those  acts  to  be  conformable 
to  the  law  of  nature,  f  Because  where  the  words  of  per- 
mission are  ambiguous  in  their  meaning,  it  is  better  for 
us  to  interpret  according  to  the  established  law  of  nature, 
what  kind  of  permission  it  is,  than  from  our  conception 
of  its  expediency  to  conclude  it  conformable  to  the  laws 
of  nature.  Connected  with  this  first  observation  there  is 
another,  expressive  of  the  power  that  obtains  among 
Christian  Princes  to  enact  laws  of  the  same  import  with 
those  given  by  Moses,  except  such  as  related  entirely  to 
the  time  of  t*he  expected  Messiah,  and  the  Gospel  then 
unrevealed,  or  where  Christ  himself  has  in  a  general  or 
particular  manner  established  any  thing  to  the  contrary. 
For  except  in  these  three  cases,  no  reason  can  be  devised, 
why  any  thing  established  by  the  law  of  Moses  should  be 
now  unlawful.  In  the  third  place  it  may  be  observed, 
that  whatever  the  law  of  Moses  enjoined  relating  to  those 
virtues,  which  Christ  required  of  his  disciples,  should  be 

*To  explain  the  meaning  of  Grotius  in  this  place,  recourse  must 
be  had  to  first  principles.  Thus  the  law  of  nature  authorizing  self- 
defence  in  its  fullest  extent,  the  laws  of  nations,  which  authorize  war 
for  the  same  purpose,  cannot  be  repugnant  to  it. 

f  The  Law  of  England  on  homicide  excusable  by  self-defence,  will 
throw  light  on  the  sentiments  of  Grotius  in  this  place.  <(The  law 
requires,  that  the  person  who  kills  another  in  his  own  defence,  should 
have  retreated  as  far  as  he  conveniently  or  safely  can,  to  avoid  the 
violence  of  the  assault,  before  he  turns  upon  his  assailant;  and  that, 
not  fictitiously,  or  in  order  to  watch  his  opportunity,  but  from  a  real 
tenderness  of  shedding  his  brother's  blood.  And  though  it  may  be 
cowardice,  in  time  of  war,  between  two  independent  nations,  to  flee 
from  our  enemy;  yet  between  two  fellow  subjects  the  law  counte- 
nances no  such  point  of  honour;  because  the  king  and  his  courts  are 
the  vindices  injurtarum,  and  will  give  to  the  party  wronged  all  the 
satisfaction  he  deserves.  And  this  is  the  doctrine  of  universal  justice, 
as  well  as  of  the  municipal  law.* — Blackstone's  Com.  vol.  4,  chap.  14. 


30  HUGO  GROTIUS 

fulfilled  by  Christians  now,  in  a  greater  degree,  from  their 
superior  knowledge,  and  higher  motives.  Thus  the  vir- 
tues of  humility,  patience,  and  charity  are  required  of 
Christians  in  a  more  perfect  manner  than  of  the  Jews 
under  the  Mosaic  dispensation,  because  the  promises  of 
heaven  are  more  clearly  laid  before  us  in  the  Gospel. 
Hence  the  old  law,  when  compared  with  the  Gospel,  is 
said  to  have  been  neither  perfect  nor  faultless,  and 
Christ  is  said  to  be  the  end  of  the  law,  and  the  law  our 
schoolmaster  to  bring  us  to  Christ.  Thus  the  old  law 
respecting  the  Sabbath,  and  the  law  respecting  tithes, 
show  that  Christians  are  bound  to  devote  not  less  than  a 
seventh  portion  of  their  time  to  divine  worship,  nor  less 
than  a  tenth  of  their  fruits  to  maintain  those  who  are 
employed  in  holy  things,  or  to  other  pious  uses. 


CHAPTER    II. 
INQUIRY  INTO  THE  LAWFULNESS  OF  WAR. 

Reasons  proving  the  lawfulness  of  War  —  Proofs  from  History  —  Proofs 
from  general  consent — The  Law  of  Nature  proved  not  repugnant 
to  War  —  War  not  condemned  by  the  voluntary  Divine  Law  preced- 
ing the  Gospel  —  Objections  answered  —  Review  of  the  question 
whether  War  be  contrary  to  the  Law  of  the  Gospel — Arguments  from 
Scripture  for  the  negative  Opinions  —  Answer  to  the  Arguments 
taken  from  Scripture  for  the  affirmative — The  opinions  of  the  primi- 
tive Christians  on  the  subject  examined. 

I.  AFTER  examining  the  sources  of  right,  the  first  and 
most  general  question  that  occurs,  is  whether  any  war 
is  just,  or  if  it  is  ever  lawful  to  make  war.  But  this 
question  like  many  others  that  follow,  must  in  the  first 
place  be  compared  with  the  rights  of  nature.  Cicero  in 
the  third  book  of  his  Bounds  of  Good  and  Evil,  and  in 
other  parts  of  his  works,  proves  with  great  erudition  from 
the  writings  of  the  Stoics,  that  there  are  certain  first 
principles  of  nature,  called  by  the  Greeks  the  first  natural  im- 
pressions, which  are  succeeded  by  other  principles  of  obliga- 
tion superior  even  to  the  first  impressions  themselves. 
He  calls  the  care,  which  every  animal,  from  the  moment 
of  its  birth,  feels  for  itself  and  the  preservation  of  its 
condition,  its  abhorrence  of  destruction,  and  of  every 
thing  that  threatens  death,  a  principle  of  nature.  Hence, 
he  says,  it  happens,  that  if  left  to  his  own  choice,  every 
man  would  prefer  a  sound  and  perfect  to  a  mutilated 
and  deformed  body.  So  that  preserving  ourselves  in  a 
natural  state,  and  holding  to  every  thing  conformable, 
and  averting  every  thing  repugnant  to  nature  is  the  first 
duty. 

But  from  the  knowledge  of  these  principles,  a  notion 
arises  of  their  being  agreeable  to  reason,  that  part  of  a 
man,  which  is  superior  to  the  body.  Now  that  agree- 
ment with  reason,  which  is  the  basis  of  propriety,  should 
have  more  weight  than  the  impulse  of  appetite ;  because 
the  principles  of  nature  recommend  right  reason  as  a  rule 
that  ought  to  be  of  higher  value  than  bare  instinct.  As 
the  truth  of  this  is  easily  assented  to  by  all  men  of 
sound  judgment  without  any  other  demonstration,  it 

(31) 


32  HUGO  GROTIUS 

follows  that  in  inquiring  into  the  laws  of  nature  the  first 
object  of  consideration  is,  what  is  agreeable  to  those  prin- 
ciples of  nature,  and  then  we  come  to  the  rules,  which, 
though  arising  only  out  of  the  former,  are  of  higher 
dignity,  and  not  only  to  be  embraced,  when  offered,  but 
pursued  by  all  the  means  in  our  power. 

This  last  principle,  which  is  called  propriety,  from  its 
fitness,  according  to  the  various  things  on  which  it  turns, 
sometimes  is  limited  to  a  very  narrow  point,  the  least 
departure  from  which  is  a  deviation  into  vice ;  sometimes 
it  allows  a  wider  scope,  so  that  some  actions,  even  lauda- 
ble in  themselves,  may  be  omitted  or  varied  without 
crime.  In  this  case  there  is  not  an  immediate  distinc- 
tion between  right  and  wrong;  the  shades  are  gradual, 
and  their  termination  unperceived ;  not  like  a  direct  con- 
trast, where  the  opposition  is  immediately  seen,  and  the 
first  step  is  a  transgression  of  the  fixed  bounds. 

The  general  object  of  divine  and  human  laws  is  to  give 
the  authority  of  obligation  to  what  was  only  laudable  in 
itself.  It  has  been  said  above  that  an  investigation  of 
the  laws  of  nature  implies  an  inquiry,  whether  any  par- 
ticular action  may  be  done  without  injustice :  now  by  an 
act  of  injustice  is  understood  that,  which  necessarily  has 
in  it  any  thing  repugnant  to  the  nature  of  a  reasonable 
and  social  being.  So  far  from  any  thing  in  the  princi- 
ples of  nature  being  repugnant  to  war,  every  part  of 
them  indeed  rather  favours  it.  For  the  preservation  of 
our  lives  and  persons,  which  is  the  end  of  war,  and  the 
possession  or  acquirement  of  things  necessary  and  useful 
to  life  is  most  suitable  to  those  principles  of  nature,  and 
to  use  force,  if  necessary,  for  those  occasions,  is  no  way 
dissonant  to  the  principles  of  nature,  since  all  animals  are 
endowed  with  natural  strength,  sufficient  to  assist  and 
defend  themselves. 

Xenophon  says,  that  every  animal  knows  a  certain 
method  of  fighting  without  any  other  instructor  than 
nature.  In  a  fragment  of  Ovid's,  called  the  Art  of 
Fishery,  it  is  remarked,  that  all  animals  know  their  en- 
emy and  his  means  of  defence,  and  the  strength  and 
measure  of  their  own  weapons.  Horace  has  said,  <(the 
wolf  attacks  with  its  teeth,  the  bull  with  its  horns,  and 
whence  is  this  knowledge  derived  but  from  instinct?" 
On  this  subject  Lucretius  enlarges,  observing  that  <(  every 
creature  knows  its  own  powers.  The  calf  butts  with  its 
forehead,  before  its  horns  appear,  and  strikes  with  all 


THE   RIGHTS   OF   WAR  AND  PEACE  33 

imaginable  fury."  On  which  Galen  expresses  himself  in 
the  following  manner,  "every  animal  appears  to  defend 
itself  with  that  part  of  its  body,  in  which  it  excels  others. 
The  calf  butts  with  its  head  before  its  horns  have  grown, 
and  the  colt  strikes  with  its  heel  before  its  hoofs  are 
hard,  as  the  young  dog  attempts  to  bite  before  his  teeth 
are  strong.*  The  same  writer  in  describing  the  use  of 
different  parts  of  the  body,  says,  (<  that  man  is  a  crea- 
ture formed  for  peace  and  war.  His  armour  forms  not  an 
immediate  part  of  his  body ;  but  he  has  hands  fit  for  pre- 
paring and  handling  arms,  and  we  see  infants  using  them 
spontaneously,  without  being  taught  to  do  so. w  Aristotle 
in  the  4th  book,  and  tenth  chapter  of  the  history  of 
animals,  says,  "that  the  hand  serves  man  for  a  spear,  a 
sword,  or  any  arms  whatever,  because  it  can  hold  and 
wield  them.*  Now  right  reason  and  the  nature  of  soci- 
ety which  claims  the  second,  and  indeed  more  important 
place  in  this  inquiry,  prohibit  not  all  force,  but  only  that 
which  is  repugnant  to  society,  by  depriving  another  of 
his  right.  For  the  end  of  society  is  to  form  a  common 
and  united  aid  to  preserve  to  every  one  his  own.  Which 
may  easily  be  understood  to  have  obtained,  before  what 
is  now  called  property  was  introduced.  For  the  free  use 
of  life  and  limbs  was  so  much  the  right  of  every  one, 
that  it  could  not  be  infringed  or  attacked  without  injus- 
tice. So  the  use  of  the  common  productions  of  nature 
was  the  right  of  the  first  occupier,  and  for  any  one  to 
rob  him  of  that  was  manifest  injustice.  This  may  be 
more  easily  understood,  since  law  and  custom  have  es- 
tablished property  under  its  present  form.  Tully  has 
expressed  this  in  the  third  book  of  his  Offices  in  the  fol- 
lowing words,  *4f  every  member  could  have  separate 
feeling,  and  imagine  it  could  derive  vigour  from  engross- 
ing the  strength  of  a  neighboring  part  of  the  body,  the 
whole  frame  would  languish  and  perish.  In  the  same 
manner  if  every  one  of  us,  for  his  own  advantage,  might 
rob  another  of  what  he  pleased,  there  would  be  a  total 
overthrow  of  human  society  and  intercourse.  For  though 
it  is  allowed  by  nature  for  every  one  to  give  the  prefer- 
ence to  himself  before  another  in  the  enjoyment  of  life 
and  necessaries,  yet  she  does  not  permit  us  to  increase 
our  means  and  riches  by  the  spoils  of  others.®  It  is  not 
therefore  contrary  to  the  nature  of  society  to  provide  and 
consult  for  ourselves,  if  another's  right  is  not  injured; 
the  force  therefore,  which  inviolably  abstains  from  touch- 
3 


34  HUGO   GROTIUS 

ing  the  rights  of  others,  is  not  unjust.  For  as  the  same 
Cicero  observes  some  where  in  his  Epistles,  that  as  there 
are  two  modes  of  contending,  the  one  by  argument,  and 
the  other  by  force,  and  as  the  former  is  peculiar  to  man, 
and  the  latter  common  to  him  with  the  brute  creation, 
we  must  have  recourse  to  the  latter,  when  it  is  impossi- 
ble to  use  the  former.  And  again,  what  can  be  opposed 
to  force,  but  force  ?  Ulpian  observes  that  Cassius  says, 
it  is  lawful  to  repel  force  by  force,  and  it  is  a  right 
apparently  provided  by  nature  to  repel  arms  with  arms, 
with  whom  Ovid  agrees,  observing  that  the  laws  permit 
us  to  take  up  arms  against  those  that  bear  them. 

II.  The  observation  that  all  war  is  not  repugnant  to 
the  law  of  nature,  may  be  more  amply  proved  from 
sacred  history.  For  when  Abraham  with  his  servants 
and  confederates  had  gained  a  victory,  by  force  of  arms, 
over  the  four  Kings,  who  had  plundered  Sodom,  God 
approved  of  his  act  by  the  mouth  of  his  priest  Melchise- 
dech,  who  said  to  him,  (<  Blessed  be  the  most  high  God, 
who  hath  delivered  thine  enemies  into  thine  hand. w 
Gen.  xiv.  20.  Now  Abraham  had  taken  up  arms,  as  ap- 
pears from  the  history,  without  any  special  command 
from  God.  But  this  man,  no  less  eminent  for  sanctity 
than  wisdom,  felt  himself  authorized  by  the  law  of  nature, 
as  it  is  admitted  by  the  evidence  of  Berosus,  and  Orpheus, 
who  were  strangers. 

There  is  no  occasion  to  appeal  to  the  history  of  the 
seven  nations,  whom  God  delivered  up  into  the  hands 
of  the  Israelites  to  be  destroyed.  For  there  was  a 
special  command  to  execute  the  judgment  of  God 
upon  nations  guilty  of  the  greatest  crimes.  From  whence 
these  wars  are  literally  styled  in  scripture,  Battles  of  the 
Lord,  as  undertaken,  not  by  human  will,  but  by  divine 
appointment.  The  xvii.  chapter  of  Exodus  supplies  a 
passage  more  to  the  purpose,  relating  the  overthrow 
which  the  Israelites,  conducted  by  Moses  and  Joshua, 
made  of  the  Amalekites.  In  this  act,  there  was  no  ex- 
press commission  from  God,  but  only  an  approval  after 
it  was  done.  But  in  the  xix.  chap,  of  Deut.  ver.  10,  15. 
God  has  prescribed  general  and  standing  laws  to  his 
people  on  the  manner  of  making  war,  by  this  circum- 
stance shewing  that  a  war  may  be  just  without  any 
express  commandment  from  him.  Because  in  the  same 
passage,  a  plain  distinction  is  made  between  the  case  of 
the  seven  nations  and  that  of  others.  And  as  there  is 


THE   RIGHTS   OF   WAR   AND   PEACE  35 

no  special  edict  prescribing  the  just  causes  for  which  war 
may  be  undertaken,  the  determination  of  them  is  left  to 
the  discovery  of  natural  reason.  Of  this  kind  is  the  war 
of  Jephthah  against  the  Ammonites,  in  defence  of  their 
borders.  Jud.  xi.  and  the  war  of  David  against  the  same 
people  for  having  violated  the  rights  of  his  Ambassadors. 
2  Sam.  x.  To  the  preceding  observations  may  be  added, 
what  the  inspired  writer  of  the  Epistle  to  the  Hebrews 
says  of  Gideon,  Barack,  Sampson,  Jephthah,  David,  Samuel, 
and  others,  who  by  faith  made  war  upon  kingdoms,  pre- 
vailed in  war  and  put  whole  armies  of  their  enemies  to 
flight.  Heb.  xi.  33,  34.  The  whole  tenor  of  this  passage 
shews,  that  the  word  faith  implies  a  persuasion,  that  what 
they  did  was  believed  to  be  agreeable  to  the  will  of  God. 
In  the  same  manner,  David  is  said,  by  a  woman  distin- 
guished for  her  wisdom,  I  Sam.  xxv.  28.  to  fight  the 
battles  of  the  Lord,  that  is  to  make  lawful  and  just  wars. 

III.  Proofs  of  what  has  been  advanced,  may  be  drawn 
also  from  the  consent  of  all,  especially,  of  the  wisest 
nations.  There  is  a  celebrated  passage  in  Cicero's  speech 
for  Milo,  in  which,  justifying  recourse  to  force  in  defence 
of  life,  he  bears  ample  testimony  to  the  feelings  of  nature, 
who  has  given  us  this  law,  which  is  not  written,  but  in- 
nate, which  we  have  not  received  by  instruction,  hearing 
or  reading,  but  the  elements  of  it  have  been  engraven  in 
our  hearts  and  minds  with  her  own  hand :  a  law  which  is 
not  the  effect  of  habit  and  acquirement,  but  forms  a  part 
in  the  original  complexion  of  our  frame:  so  that  if  our 
lives  are  threatened  with  assassination  or  open  violence 
from  the  hands  of  robbers  or  enemies,  ANY  means  of 
defence  would  be  allowed  and  laudable.  He  proceeds, 
reason  has  taught  this  to  the  learned,  necessity  to  the 
barbarians,  custom  to  nations,  and  nature  herself  to  wild 
beasts,  to  use  every  possible  means  of  repelling  force 
offered  to  their  bodies,  their  limbs  and  their  lives.  Caius 
and  Lawyer  says,  natural  reason  permits  us  to  defend 
ourselves  against  dangers.  And  Florentinus,  another  legal 
authority,  maintains,  that  whatever  any  one  does  in  de- 
fence of  his  person  ought  to  be  esteemed  right.  Josephus 
observes,  that  the  love  of  life  is  a  law  of  nature  strongly 
implanted  in  all  creatures,  and  therefore  we  look  upon 
those  as  enemies,  who  would  openly  deprive  us  of  it. 

This  principle  is  founded  on  reasons  of  equity,  so  evi- 
dent, that  even  in  the  brute  creation,  who  have  no  idea  of 
right,  we  make  a  distinction  between  attack  and  defence. 


36  HUGO  GROTIUS 

For  when  Ulpian  had  said,  that  an  animal  without  knowl- 
edge, that  is  without  the  use  of  reason,  could  not  possibly 
do  wrong,  he  immediately  adds,  that  when  two  animals 
fight,  if  one  kills  the  other,  the  distinction  of  Quintius 
Mutius  must  be  admitted,  that  if  the  aggressor  were  killed 
no  damages  could  be  recovered;  but  if  the  other,  which 
was  attacked,  an  action  might  be  maintained.  There  is 
a  passage  in  Pliny,  which  will  serve  for  an  explanation  of 
this,  he  says  that  the  fiercest  lions  do  not  fight  with  each 
other,  nor  do  serpents  bite  serpents.  But  if  any  violence 
is  done  to  the  tamest  of  them,  they  are  roused,  and  upon 
receiving  any  hurt,  will  defend  themselves  with  the  great- 
est alacrity  and  vigour. 

IV.  From  the  law    of  nature  then  which  may  also  be 
called  the  law  of  nations,  it   is    evident  that  all  kinds  of 
war  are  not  to  be  condemned.     In  the  same  manner,  all 
history  and   the   laws   of   manners  of   every  people  suffi- 
ciently  inform  us,    that   war   is   not  condemned  by  the 
voluntary   law  of  nations.      Indeed   Hermogenianus   has 
said,  that  wars  were  introduced  by  the  law  of  nations,  a 
passage    which   ought   to   be  explained   somewhat  differ- 
ently from   the    general   interpretation  given  to  it.     The 
meaning  of  it  is,  that  certain  formalities,  attending  war, 
were  introduced  by  the  law  of  nations,  which  formalities 
were  necessary  to   secure    the   peculiar  privileges  arising 
out  of  the  law.     From   hence   a  distinction,  which  there 
will  be   occasion   to   use   hereafter,  between  a  war  with 
the   usual   formalities   of    the   law  of    nations,    which   is 
called  just  or  perfect,  and  an   informal  war,  which  does 
not   for   that   reason   cease   to   be   just,    or  agreeable  to 
right.     For  some   wars,  when   made  upon  just  grounds, 
though  not   exactly  conformable,  yet   are  not  repugnant 
to   the  law,  as   will   be  explained  more   fully  hereafter. 
By  the  law  of  the  nations,  says   Livy,  provision  is  made 
to  repel  force  by  arms ;  and  Florentinus  declares,  that  the 
the  law  of  nations  allows  us  to  repel  violence  and  injury, 
in  order  to  protect  our  persons. 

V.  A  greater    difficulty    occurs    respecting    the    divine 
voluntary  law.     Nor  is  there   any  force  in  the  objection 
that  as  the  law  of  nature   is   unchangeable,  nothing  can 
be  appointed  even   by  God   himself    contrary  to  it.     For 
this  is  true  only  in  those  things,  which  the  law  of  nature 
positively  forbids   or   commands;   not  in  those  which  are 
tacitly  permitted   by   the   same  law.      For  acts  of   that 
kind,  not   falling    strictly  within    the    general    rule,  but 


THE   RIGHTS   OF  WAR  AND   PEACE  37 

being  exceptions  to  the  law  of  nature,  may  be  either,  for- 
bidden or  commanded.  The  first  objection  usually  made 
against  the  lawfulness  of  war  is  taken  from  the  law 
given  to  Noah  and  his  posterity,  Gen.  ix.  5,  6,  where 
God  thus  speaks,  "Surely  the  blood  of  your  lives  will  I 
require ;  at  the  hand  of  every  beast  will  I  require  it,  and 
at  the  hand  of  every  man;  at  the  hand  of  every  man's 
brother  will  I  require  the  life  of  man.  Whoever  sheds 
man's  blood,  by  man  shall  his  blood  be  shed;  for  in  the 
image  of  God  made  he  man. M  Here  some  take  the  phrase 
of  requiring  blood,  in  the  most  general  sense,  and  the 
other  part,  that  blood  shall  be  shed  in  its  turn,  they  con- 
sider as  a  bare  threat,  and  not  an  approbation;  neither 
of  which  acceptations  can  be  admitted.  For  the  prohi- 
bition of  shedding  blood  extends  not  beyond  the  law 
itself,  which  declares,  THOU  SHALT  NOT  KILL;  but  passes 
no  condemnation  upon  capital  punishments  or  wars  un- 
dertaken by  public  authority. 

Neither  the  law  of  Moses,  nor  that  given  to  Noah 
established  any  thing  new,  they  were  only  a  declaratory 
repetition  of  the  law  of  nature,  that  had  been  obliterated 
by  depraved  custom.  So  that  the  shedding  of  blood  in 
a  criminal  and  wanton  manner  is  the  only  act  prohibited 
by  those  commandments.  Thus  every  act  of  homocide 
does  not  amount  to  murder,  but  only  that,  which  is  com- 
mitted with  a  wilful  and  malicious  intention  to  destroy 
the  life  of  an  innocent  person.  As  to  what  follows  about 
blood  being  shed  in  return  for  blood,  it  seems  to  imply 
not  a  mere  act  of  personal  revenge,  but  the  deliberate 
exercise  of  a  perfect  right,  which  may  be  thus  explained ; 
it  is  not  unjust,  according  to  the  principles  of  nature 
that  any  one  should  suffer  in  proportion  to  the  evil  he 
has  done,  conformably  to  the  judicial  maxim  of  Rhada- 
manthus,  that  if  any  one  himself  suffers  what  he  has 
done,  it  is  but  just  and  right.  The  same  opinion  is  thus 
expressed  by  Seneca  the  father;  "it  is  but  a  just  retalia- 
tion for  any  one  to  suffer  in  his  own  person  the  evil 
which  he  intended  to  inflict  upon  another. }>  From  a 
sense  of  this  natural  justice,  Cain  knowing  himself  guilty 
of  his  brother's  blood  said,  "whosoever  finds  me  shall 
kill  me.» 

But  as  in  those  early  times,  when  men  were  few,  and 
aggressions  rare,  there  was  less  occasion  for  examples, 
God  restrained  by  an  express  commandment  the  impulse 
of  nature  which  appeared  lawful,  he  forbad  any  one  to 


38  HUGO  GROTIUS 

kill  the  murderer,  at  the  same  time  prohibiting  all  inter- 
course with  him,  even  so  far  as  not  to  touch  him.* 

Plato  has  established  this  in  his  laws,  and  the  same 
rule  prevailed  in  Greece,  as  appears  from  the  following 
passage  in  Euripides,  "our  fathers  of  old  did  well  in 
banishing  from  their  intercourse  and  sight  any  one  that 
had  shed  another's  blood;  imposing  banishment  by  way 
of  atonement,  rather  than  inflicting  death.*  We  find 
Thucydides  of  the  same  opinion,  <(  that  anciently  lighter 
punishments  were  inflicted  for  the  greatest  crimes;  but 
in  process  of  time,  as  those  penalties  came  to  be  despised, 
legislators  were  obliged  to  have  recourse  to  death  in  cer- 
tain cases. w  We  may  add  to  the  above  instances  the  re- 
mark of  Lactantius,  that  as  yet  it  appeared  a  sin  to 
punish  even  the  most  wicked  men  with  death. 

The  conjecture  of  the  divine  will  taken  from  the  re- 
markable instance  of  Cain,  whom  no  one  was  permitted 
to  kill  passed  into  a  law,  so  that  Lanech,  having  per- 
petrated a  similar  deed,  promised  himself  impunity  from 
this  example. —  Gen.  iv.  24. 

But  as  before  the  deluge,  in  the  time  of  the  Giants,  the 
practice  of  frequent  and  wanton  murders  had  prevailed; 
upon  the  renewal  of  the  human  race,  after  the  deluge, 
that  the  same  evil  custom  might  not  be  established,  God 
thought  proper  to  restrain  it  by  severer  means.  The 
lenity  of  former  ages  was  laid  aside,  and  the  divine 
authority  gave  a  sanction  to  the  precepts  of  natural 
justice,  that  whoever  killed  a  murderer  should  be  inno- 
cent. After  tribunals  were  erected,  the  power  over  life 
was,  for  the  very  best  reasons,  conferred  upon  the  judges 
alone.  Still  some  traces  of  ancient  manners  remained  in 
the  right  which  was  granted,  after  the  introduction  of 
the  Mosaic  Law,  to  the  nearest  in  blood  to  the  person 
killed. 

This  interpretation  is  justified  by  the  authority  of 
Abraham,  who,  with  a  perfect  knowledge  of  the  law  given 
to  Noah,  took  arms  against  the  four  Kings,  fully  per- 
suaded that  he  was  doing  nothing  in  violation  of  that 
law.  In  the  same  manner  Moses  ordered  the  people  to 
fight  against  Amalekites,  who  attacked  them;  following 
in  this  case  the  dictates  of  nature,  for  he  appears  to  have 
had  no  special  communication  with  God.  Exod.  xvii.  9. 

*  The  author  here  alludes  to  the  defilement  or  uncleanness  which 
the  ancients  thought  was  contracted  by  touching  a  man,  who  had 
killed  another,  even  innocently  and  lawfully. —  Barbeyrac. 


THE  RIGHTS  OF  WAR  AND   PEACE  39 

Besides,  we  find  that  capital  punishments  were  inflicted 
upon  other  criminals,  as  well  as  murderers,  not  only 
among  the  Gentiles,  but  among  those  who  had  been  im- 
pressed with  the  most  pious  rules  and  opinions,  even  the 
Patriarchs  themselves.  Gen.  xxxviii.  24. 

Indeed  upon  comparing  the  divine  will  with  the  light 
of  nature,  it  was  concluded,  that  it  seemed  conformable 
to  justice,  that  other  crimes  of  great  enormity  should  be 
subject  to  the  same  punishment  as  that  of  murder.  For 
there  are  some  rights,  such  as  those  of  reputation, 
chastity,  conjugal  fidelity,  submission  of  subjects  to  their 
princes,  all  of  which  are  esteemed  of  equal  value  with 
life  itself,  because  on  the  preservation  of  these  the  peace 
and  comfort  of  life  depend.  The  violation  of  any  of 
those  rights  is  little  less  than  murder  itself. 

Here  may  be  applied  the  old  tradition  found  among  the 
Jews,  that  there  were  many  laws,  which  were  not  ALL 
mentioned  by  Moses,  given  by  God  to  the  sons  of  Noah ; 
as  it  was  sufficient  for  his  purpose,  that  they  should 
afterwards  be  comprehended  in  the  peculiar  laws  of  the 
Hebrews.  Thus  it  appears  from  xviii.  chap,  of  Leviticus, 
that  there  was  an  ancient  law  against  incestuous  mar- 
riages, though  not  mentioned  by  Moses  in  its  proper 
place.  Now  among  the  commandments  given  by  God  to 
the  children  of  Noah,  it  is  said,  that  death  was  expressly 
declared  to  be  the  punishment  not  only  for  murder,  but 
for  adultery,  incest,  and  robbery,  which  is  confirmed  by 
the  words  of  Job  xxxi.  n.  The  law  of  Moses  too,  for 
the  sanction  of  capital  punishments,  gives  reasons  which 
operate  no  less  with  other  nations,  than  with  the  Jewish 
people.  Levit.  xviii.  25-30.  Psa.  ci.  5.  Prov.  xx.  8.  And 
particularly  respecting  murder  it  is  said,  the  land  cannot 
be  cleansed  unless  the  blood  of  the  murderer  be  shed. 
Numb.  xxv.  31-33.  Besides,  it  were  absurd  to  suppose 
that  the  Jewish  people  were  indulged  with  the  privilege 
of  maintaining  the  public  safety,  and  that  of  individuals 
by  capital  punishments,  and  asserting  their  rights  by  war, 
and  that  other  kings  and  nations  were  not  allowed  the 
same  powers.  Nor  do  we  find  that  those  kings  or  nations 
were  forewarned  by  the  Prophets,  that  the  use  of  capital 
punishments,  and  that  all  wars,  were  condemned  by  God  in 
the  same  manner  as  they  were  admonished  of  all  other  sins. 
On  the  other  hand,  can  any  one  doubt,  as  the  law  of 
Moses  bore  such  an  express  image  of  the  divine  will  re- 
specting criminal  justice,  whether  other  nations  would 


40  HUGO   GROTIUS 

not  have  acted  wisely  in  adopting  it  for  their  example  ? 
It  is  certain  that  the  Greeks,  and  the  Athenians  in  par- 
ticular did  so.  From  hence  came  the  close  resemblance 
which  the  Jewish  bore  to  the  old  Athenian  law,  and  to 
that  of  the  twelve  tables  of  Rome.  Enough  has  been 
said,  to  shew  that  the  law  given  to  Noah  cannot  bear  the 
interpretation  of  those,  who  derive  from  it  their  argu- 
ments against  the  lawfulness  of  all  war. 

VI.  The  arguments  against  the  lawfulness  of  war. 
drawn  from  the  Gospel,  are  more  specious.  In  examining 
which  it  will  not  be  necessary  to  as'sume,  as  many  do, 
that  the  Gospel  contains  nothing  more  than  the  law  of 
nature,  except  the  rules  of  faith  and  the  Sacraments:  an 
assumption,  which  in  its  general  acceptation  is  by  no 
means  true.  It  may  readily  be  admitted,  that  nothing 
inconsistent  with  natural  justice  is  enjoined  in  the  gospel, 
yet  it  can  never  be  allowed,  that  the  laws  of  Christ  do 
not  impose  duties  upon  us,  above  those  required  by  the 
law  of  nature.  And  those,  who  think  otherwise,  strain 
their  arguments  to  prove  that  many  practices  forbidden 
by  the  gospel,  as  concubinage,  divorce,  polygamy,  were 
made  offences  by  the  law  of  nature.  The  light  of  nature 
might  point  out  the  HONOUR  of  abstaining  from  such 
practices,  but  the  SINFULNESS  of  them  could  not  have  been 
discovered  without  a  revelation  of  the  will  of  God.  Who 
for  instance  would  say,  that  the  Christian  precept  of 
laying  down  our  lives  for  others  was  an  obligation  of  the 
law  of  nature  ?  i  John  iii.  16.  It  is  said  by  Justin  the 
Martyr,  that  to  live  according  to  the  bare  law  of  nature 
is  not  the  character  of  a  true  believer.  Neither  can  we 
follow  those,  who,  adopting  another  meaning  of  no  incon- 
siderable import,  construe  the  precept  delivered  by  Christ 
in  his  sermon  on  the  mount,  into  nothing  more  than  an 
interpretation  of  the  Mosaic  Law.  For  the  words,  <(you 
have  heard  it  was  said  to  them  of  old,  but  I  say  to  YOU,* 
which  are  so  often  repeated,  imply  something  else.  Those 
of  old  were  no  other  than  contemporaries  of  Moses:  for 
what  is  there  repeated  as  said  to  those  of  OLD  are  not  the 
words  of  the  teachers  of  the  law,  but  of  Moses,  either 
LITERALLY,  or  in  THEIR  meaning.  They  are  cited  by  our 
Saviour  as  his  express  words,  not  as  interpretations  of 
them:  ''Thou  shalt  not  kill,"  Exod.  xx.  whoever  killeth 
shall  be  in  danger  of  Judgment,  Levit.  xxi.  21.  Numb. 
xxxv.  16,  17,  30.  "Thou  shalt  not  commit  adultery,* 
Exod.  xx.  (<  whosoever  shall  put  away  his  wife,  let  him 


THE  RIGHTS  OF  WAR  AND  PEACE       41 

give  her  a  writing  of  divorcement.*  Deut.  xxiv,  i. 
<(  Thou  shalt  not  forswear  thyself,  but  shalt  perform  unto 
the  Lord  thine  oaths. "  Exod.  xx.  7.  Numb,  xxx  2.  (<  An 
eye  for  an  eye,  and  a  tooth  for  a  tooth, }>  may  be  demanded 
in  justice."  Levit.  xxxiv.  20.  Deut.  xix.  21.  *  Thou 
shalt  love  thy  neighbour, M  that  is,  an  Israelite.  Levit.  xix. 
1 8.  (<  and  thou  shalt  hate  thine  enemy,"  that  is,  any  one 
of  the  seven  nations  to  whom  friendship  or  compassion 
was  forbidden  to  be  shewn.  Exod.  xxxiv.  n.  Deut. 
vii.  i.  To  these  may  be  added  the  Amalekites,  with 
whom  the  Israelites  were  commanded  to  maintain  irre- 
concileable  war.  Exod.  xxvii.  19.  Deut.  xxv.  19. 

But  to  understand  the  words  of  our  Saviour,  we  must 
observe  that  the  law  of  Moses  is  taken  in  a  double  sense, 
either  as  containing  some  principles  in  common  with  hu- 
man laws,  such  as  imposing  restraint  upon  human  crimes 
by  the  dread  of  exemplary  punishments.  Heb.  ii.  2.  And 
in  this  manner  maintaining  civil  society  among  the  Jew- 
ish people:  for  which  reason  it  is  called,  Heb.  vii.  16, 
the  law  of  a  carnal  commandment,  and  Rom.  iii.  17.  the 
law  of  works :  or  it  may  be  taken  in  another  sense,  com- 
prehending the  peculiar  sanctions  of  a  divine  law,  re- 
quiring purity  of  mind,  and  certain  actions,  which  might 
be  omitted  without  temporal  punishments.  In  this  sense 
it  is  called  a  spiritual  law,  giving  life  to  the  soul.  The 
teachers  of  the  law,  and  the  Pharisees  considering  the 
first  part  as  sufficient,  neglected  to  instruct  the  people 
in  the  second  and  more  important  branch,  deeming  it 
superfluous.  The  truth  of  this  may  be  proved,  not  only 
from  our  own  writings,  but  from  Josephus  also,  and  the 
Jewish  Rabbies.  Respecting  this  second  part  we  may 
observe,  that  the  virtues  which  are  required  of  Chris- 
tians, are  either  recommended  or  enjoined  to  the  He- 
brews, but  not  enjoined  in  the  same  degree  and  extent 
as  to  Christians.  Now  in  both  these  senses  Christ  op- 
poses his  own  precepts  to  the  old  law.  From  whence  it 
is  clear,  that  his  words  contain  more  than  a  bare  inter- 
pretation of  the  Mosaic  law.  These  observations  apply 
not  only  to  the  question  immediately  in  hand,  but  to 
many  others;  that  we  may  not  rest  upon  the  authority 
of  the  Mosaic  law  farther  than  is  right. 

VII.  Omitting  therefore  the  less  satisfactory  proofs,  as 
a  leading  point  of  evidence  to  shew  that  the  right  of 
war  is  not  taken  away  by  the  law  of  the  gospel,  that 
passage  in  St.  Paul's  Epistle  to  Timothy  may  be  referred 


42  HUGO   GROTIUS 

to,  where  the  Apostle  says,  <(I  exhort  therefore  that, 
first  of  all,  supplications,  prayers,  intercessions,  and  giv- 
ing of  thanks  be  made  for  all  men;  for  Kings,  and  for 
all  that  are  in  authority,  that  we  may  lead  a  quiet  and 
peaceable  life,  in  all  godliness  and  honesty;  for  this  is 
good  and  acceptable  in  the  sight  of  God  our  Saviour,  who 
would  have  all  men  to  be  saved,  and  to  come  to  the 
knowledge  of  the  truth."  i  Eph.  ii.  i,  2,  3.  From  this 
passage,  the  following  conclusions  may  be  drawn;  in  the 
first  place,  that  Christian  piety  in  kings  is  acceptable  to 
God,  that  their  profession  of  Christianity  does  not 
abridge  their  rights  of  sovereignty.  Justin  the  Martyr 
has  said,  "that  in  our  prayers  for  Kings,  we  should  beg 
that  they  may  unite  a  spirit  of  wisdom  with  their  royal 
power,"  and  in  the  book  called  the  Constitutions  of 
Clement,  the  Church  prays  for  Christian  rulers,  and  that 
Christian  Princes  may  perform  an  acceptable  service  to 
God,  by  securing  to  other  Christians  the  enjoyment  of 
quiet  lives.  The  manner  in  which  the  Sovereign  secures 
this  important  end,  is  explained  in  another  passage  from 
the  same  Apostle.  Rom.  xiii.  4.  (<  He  is  the  minister  of 
God  to  thee  for  good.  But  if  thou  do  evil,  fear,  for  he 
beareth  not  the  sword  in  vain;  for  he  is  the  minister  of 
God,  an  avenger  to  execute  wrath  upon  them,  that  do 
evil.  *  By  the  right  of  the  sword  is  understood  the  exer- 
cise of  every  kind  of  restraint,  in  the  sense  adopted  by 
the  Lawyers,  not  only  over  offenders  amongst  his  own 
people,  but  against  neighboring  nations,  who  violate  his 
own  and  his  people's  rights.  To  clear  up  this  point,  we 
may  refer  to  the  second  Psalm,  which  although  it  ap- 
plies literally  to  David,  yet  in  its  more  full  and  perfect 
sense  relates  to  Christ,  which  may  be  seen  by  consulting 
other  parts  of  scripture.  For  instance,  Acts  iv.  25.  xiii. 
33.  For  that  Psalm  exhorts  all  kings  to  worship  the  son 
of  God,  shewing  themselves,  as  kings,  to  be  his  minis- 
ters, which  may  be  explained  by  the  words  of  St.  Au- 
gustine, who  says,  <(  In  this,  kings,  in  their  royal  capacity, 
serve  God  according  to  the  divine  commandment,  if  they 
promote  what  is  good,  and  prohibit  what  is  evil  in  their 
kingdoms,  not  only  relating  to  human  society,  but  also 
respecting  religion."  And  in  another  place  the  same 
writer  says,  <(  How  can  kings  serve  the  Lord  in  fear, 
unless  they  can  prohibit  and  punish  with  due  severity 
offences  against  the  law  of  God?  For  the  capacities  in 
which  they  serve  God,  as  individuals,  and  as  kings,  are 


THE   RIGHTS   OF   WAR   AND   PEACE  43 

very  different.  In  this  respect  they  serve  the  Lord,  as 
kings,  when  they  promote  his  service  by  means  which 
they  could  not  use  without  regal  power. 

The  same  part  of  the  Apostle's  writings  supplies  us 
with  a  second  argument,  where  the  higher  powers,  mean- 
ing kings,  are  said  to  be  from  God,  and  are  called  the 
ordinance  of  God ;  from  whence  it  is  plainly  inferred  that 
we  are  to  honour  and  obey  the  king,  from  motives  of 
conscience,  and  that  every  one  who  resists  him,  is  resist- 
ing God.  If  the  word  ordinance  meant  nothing  more 
than  a  bare  permission,  that  obedience  which  the  Apostle 
so  strenuously  enjoins  would  only  have  the  force  of  an 
imperfect  obligation.  But  as  the  word  ordinance,  in  the 
original,  implies  an  express  commandment  and  appoint- 
ment, and  as  all  parts  of  the  revealed  will  of  God  are 
consistent  with  each  other,  it  follows  that  the  obedience 
of  subjects  to  sovereigns  is  a  duty  of  supreme  obligation. 
Nor  is  the  argument  at  all  weakened  by  its  being  said, 
that  the  Sovereigns  at  the  time  when  St.  Paul  wrote, 
were  not  Christians.  For  it  is  not  universally  true,  as 
Sergius  Paulus,  the  deputy  governor  of  Cyprus,  had  long 
before  professed  the  Christian  religion.  Acts  xiii.  12. 
There  is  no  occasion  to  mention  the  tradition  respecting 
Abgarus  the  King  of  Edessa's  Epistle  to  our  Saviour;  a 
tradition  mingled  with  falsehood,  though,  in  some  meas- 
ure founded  upon  truth.  For  the  question  did  not  turn 
upon  the ,  characters  of  the  Princes,  whether  they  were 
godly  or  not,  but  whether  THEIR  holding  the  kingly  office 
was  repugnant  to  the  law  of  God.  This  St.  Paul  denies, 
maintaining  that  the  kingly  office,  even  under  all  cir- 
cumstances, was  appointed  by  God,  therefore  it  ought  to 
be  honoured  from  motives  of  conscience,  which,  properly 
speaking,  are  under  the  controul  of  God  alone.  So  that 
Nero,  and  King  Agrippa  whom  Paul  so  earnestly  entreats 
to  become  a  Christian,  might  have  embraced  Christian- 
ity, and  still  retained,  the  one  his  regal,  and  the  other 
his  imperial  authority,  which  could  not  be  exercised 
without  the  power  of  the  sword.  As  the  legal  sacrifices 
might  formerly  be  performed  by  wicked  Priests;  in  the 
same  manner  regal  power  would  retain  its  indelible 
sanctity,  though  in  the  hands  of  an  ungodly  man. 

A  third  argument  is  derived  from  the  words  of  John 
the  Baptist,  who,  at  a  time  when  many  thousands  of  the 
Jews  served  in  the  Roman  armies,  as  appears  from  the 
testimony  of  Josephus  and  others,  being  seriously  asked 


44  HUGO   GROTIUS 

by  the  soldiers,  what  they  should  do  to  avoid  the  wrath 
of  God,  did  not  command  them  to  renounce  their  mili- 
tary calling,  which  he  ought  to  have  done,  had  it  been 
inconsistent  with  the  law  and  will  of  God,  but  to  abstain 
from  violence,  extortion,  and  false  accusation,  and  to  be 
content  with  their  wages.  In  reply  to  these  words  of 
the  Baptist,  so  plainly  giving  authority  to  the  military 
profession,  many  observed  that  the  injunction  of  the  Bap- 
tist is  so  widely  different  from  the  precepts  of  Christ, 
that  HE  seemed  to  preach  one  doctrine  and  our  LORD 
another.  Which  is  by  no  means  admissible,  for  the  fol- 
lowing reasons.  Both  our  Saviour  and  the  Baptist  made 
repentance  the  substance  of  their  doctrine;  for  the  king- 
dom of  heaven  was  at  hand.  By  the  Kingdom  of  Heaven 
is  meant  a  new  law,  as  the  Hebrews  used  to  give  the  name 
of  Kingdom  to  their  law.  Christ  himself  says  the  King- 
dom of  Heaven  began  to  suffer  violence  from  the  days 
of  John  the  Baptist.  Matt.  xi.  12.  John  is  said  to  have 
preached  the  baptism  of  repentance  for  the  remission  of 
sins.  Mark  i.  4.  The  Apostles  are  said  to  have  done  the 
same  in  the  name  of  Christ.  Acts  xi.  38.  John  requires 
fruits  worthy  of  repentance,  and  threatens  destruction  to 
those,  who  do  not  produce  them.  Matt.  iii.  8,  10.  He 
also  requires  works  of  charity  above  the  law.  Luke  iii.  2. 
The  law  is  said  to  have  continued  till  John,  that  is,  a 
more  perfect  law  is  said  to.  have  commenced  from  his 
instruction.  He  was  called  greater  than  the  prophets, 
and  declared  to  be  one  sent  to  give  the  knowledge  of 
salvation  to  the  people  by  announcing  the  gospel.  He 
makes  no  distinction  between  himself  and  Jesus  on  the 
score  of  doctrine,  only  ascribing  pre-eminence  to  Christ 
as  the  promised  Messiah,  the  Lord  of  the  Kingdom  of 
Heaven,  who  would  give  the  power  of  the  holy  spirit  to 
those,  who  believed  in  him.  In  short,  the  dawning  rudi- 
ments of  knowledge,  which  proceeded  from  the  forerun- 
ner, were  more  distinctly  unfolded  and  cleared  up,  by 
Christ  himself,  the  light  of  the  world. 

There  is  a  fourth  argument,  which  seems  to  have  no 
little  weight,  proceeding  upon  the  supposition,  that  if  the 
right  of  inflicting  capital  punishments  were  abolished,  and 
princes  were  deprived  of  the  power  of  the  sword  to  pro- 
tect their  subjects  against  the  violence  of  murderers  and 
robbers,  wickedness  would  triumphantly  prevail,  and  the 
world  would  be  deluged  with  crimes,  which,  even  under 
the  best  established  governments,  are  with  so  much  dim"- 


THE  RIGHTS   OF   WAR  AND   PEACE  45 

culty  prevented  or  restrained.  If  then  it  had  been  the 
intention  of  Christ  to  introduce  such  an  order  of  things 
as  had  never  been  heard  of,  he  would  undoubtedly  by 
the  most  express  and  particular  words,  have  condemned 
all  capital  punishments,  and  all  wars,  which  we  never 
read  that  he  did.  For  the  arguments,  brought  in  favor 
of  such  an  opinion,  are  for  the  most  part  very  indefinite 
and  obscure.  Now  both  justice  and  common  sense  require 
such  general  expressions  to  be  taken  in  a  limited  accepta- 
tion, and  allow  us,  in  explaining  ambiguous  words,  to 
depart  from  their  literal  meaning,  where  our  strictly 
adhering  to  it  would  lead  to  manifest  inconvenience  and 
detriment. 

There  is  a  fifth  argument,  maintaining  that  no  proof 
can  be  adduced  that  the  judicial  part  of  the  Mosaic  Law, 
inflicting  sentence  of  death,  ever  ceased  to  be  in  force, 
till  the  city  of  Jerusalem,  and  the  civil  polity  of  the  Jews 
were  utterly  destroyed,  without  hopes  of  restoration.  For 
in  the  Mosaic  dispensation  no  assignable  term  is  named 
for  the  duration  of  the  law;  nor  do  Christ  and  his 
Apostles  ever  speak  of  its  abolition,  except  in  allusion 
to  the  overthrow  of  the  Jewish  state.  Indeed  on  the 
contrary,  St.  Paul  says,  that  the  High  Priest  was  ap- 
pointed to  judge  according  to  the  law  of  Moses.  Acts 
xxiv.  3.  And  Christ  himself,  in  the  introduction  to  his 
precepts,  declares  that  he  came  not  to  destroy  the  law, 
but  to  fulfil  it.  Matt.  v.  17.  The  application  of  his 
meaning  to  the  ritual  law  is  very  plain,  for  it  was  only 
the  outline  and  shadow  of  that  perfect  body,  of  which 
the  Gospel  formed  the  substance.  But  how  is  it  possible 
that  the  judicial  laws  should  stand,  if  Christ,  according 
to  the  opinion  of  some,  abolished  them  by  his  coming? 
Now  if  the  law  remained  in  force  as  long  as  the  Jewish 
state  continued,  it  follows  that  the  Jewish  converts  to 
Christianity  if  called  to  the  magisterial  office,  could  not 
refuse  it  on  the  score  of  declining  to  pass  sentence  of 
death,  and  that  they  could  not  decide  otherwise  than  the 
law  of  Moses  had  prescribed. 

Upon  weighing  the  whole  matter,  the  slightest  ground 
cannot  be  discovered  for  supposing  that  any  pious  man, 
who  had  heard  those  words  from  our  Saviour  himself, 
would  have  understood  them  in  a  sense  different  from  that 
which  has  been  here  given.  It  must  however  be  admitted 
that,  before  the  Gospel  dispensation  permission  or  impunity 
was  granted  to  certain  acts  and  dispositions,  which  it 


46  HUGO   GROTIUS 

would  neither  be  necessary  nor  proper  to  examine  at 
present,  upon  which  Christ  did  not  allow  his  followers  to 
act.  Of  this  kind  was  the  permission  to  put  away  a  wife 
for  every  offence,  and  to  seek  redress  by  law  for  every 
injury.  Now  between  the  positive  precepts  of  Christ  and 
those  permissions  there  is  a  difference,  but  not  a  contra- 
diction. For  he  that  retains  his  wife,  and  he  that  forgoes 
his  right  of  redress,  does  nothing  CONTRARY  to  the  law, 
but  rather  acts  agreeably  to  the  SPIRIT  of  it.  It  is  very 
different  with  a  judge,  who  is  not  merely  permitted,  but 
commanded  by  the  law  to  punish  a  murderer  with  death, 
incurring  guilt  in  the  sight  of  God,  if  he  should  act  other- 
wise. If  Christ  had  forbidden  him  to  put  a  murderer  to 
death,  his  prohibition  would  have  amounted  to  a  contra- 
diction, and  it  would  have  abolished  the  law. 

The  example  of  Cornelius  the  Centurion  supplies  a  sixth 
argument  in  favor  of  this  opinion.  In  receiving  the  holy 
spirit  from  Christ,  he  received  an  indubitable  proof  of  his 
justification ;  he  was  baptized  into  the  name  of  Christ  by 
Peter,  yet  we  do  not  find  that  he  either  had  resigned  or 
was  advised  by  the  Apostle  to  resign  his  military  com- 
mission. In  reply  to  which  some  maintain,  that  when 
instructed  by  Peter  in  the  nature  of  the  Christian  religion, 
he  must  have  been  instructed  to  form  the  resolution 
of  quitting  his  military  calling.  There  would  be  some 
weight  in  their  answer,  if  it  could  be  shown  that  an 
absolute  prohibition  of  war  is  to  be  found  among  the  pre- 
cepts of  Christ.  And  as  it  can  be  found  nowhere  else, 
it  would  have  been  inserted  in  its  proper  place  among  the 
precepts  of  Christ,  that  after  ages  might  not  have  been 
ignorant  of  the  rules  of  duty.  Nor  as  may  be  seen  in  the 
xix.  chap,  of  the  Acts  of  the  Apostles  and  the  ipth  ver. 
is  it  usual  with  St.  Luke,  in  cases  where  the  personal 
character  and  situation  of  converts  required  an  ex- 
traordinary change  of  life  and  disposition,  to  pass  over 
such  a  circumstance  without  notice. 

The  seventh  argument  is  like  the  preceding,  and  is 
taken  from  the  example  of  Sergius  Paulus,  which  has 
been  already  mentioned.  In  the  history  of  his  conversion 
there  is  not  the  least  intimation  of  his  abdicating  the 
magistracy,  or  being  required  to  do  so.  Therefore  silence 
respecting  a  circumstance,  which  would  naturally  and 
necessarily  have  been  mentioned,  may  be  fairly  taken  as 
a  proof  that  it  never  existed.  The  conduct  of  St.  Paul 
supplies  us  with  an  eighth  argument  on  this  subject. 


THE   RIGHTS  OF  WAR  AND   PEACE  47 

When  he  understood  that  the  Jews  lay  in  wait  for  an  op- 
portunity to  seize  and  kill  him,  he  immediately  gave  infor- 
mation of  their  design  to  the  commander  of  the  Roman 
garrison,  and  when  the  commander  gave  him  a  guard  of 
soldiers  to  protect  him  on  his  journey,  he  made  no  remon- 
strance, nor  ever  hinted  either  to  the  commander  or  the 
soldiers  that  it  was  displeasing  to  God  to  repel  force  by 
force.  Yet  this  is  the  same  Apostle  who,  as  appears  from 
all  his  writings,  2  Tim.  iv.  2.  neither  himself  neglected  nor 
allowed  others  to  neglect  any  opportunity  of  reminding 
men  of  their  duty.  In  addition  to  all  that  has  been  said, 
it  may  be  observed,  that  the  peculiar  end  of  what  is  law- 
ful and  binding,  must  itself  be  lawful  and  binding  also. 
It  is  lawful  to  pay  tribute,  and  according  to  St.  Paul's  ex- 
planation, it  is  an  act  binding  upon  the  conscience,  Rom. 
xiii.  3,  4,  6.  For  the  end  of  tribute  is  to  supply  the  state 
with  the  means  of  protecting  the  good,  and  restraining  the 
wicked.  There  is  a  passage  in  Tacitus  very  applicable  to 
the  present  question.  It  is  in  the  fourth  book  of  his  his- 
tory, in  the  speech  of  Petilius  Cerealis,  who  says,  (<the 
peace  of  nations  cannot  be  preserved  without  armies,  nor 
can  armies  be  maintained  without  pay,  nor  pay  supplied 
without  taxation.*  There  is  a  sentiment  similar  to  this 
of  the  historian,  in  St.  Augustin,  he  says,  <(for  this  pur- 
pose we  pay  tribute,  that  the  soldier  may  be  provided 
with  the  necessaries  of  life." 

The  tenth  argument  is  taken  from  that  part  of  the 
xxv.  chap,  of  the  Acts  of  the  Apostles,  where  Paul  says, 
*  If  I  have  wronged  any  man,  or  done  any  thing  worthy 
of  death,  I  refuse  not  to  die."  From  whence  the  opin- 
ion of  St.  Paul  may  be  gathered,  that,  even  after  the 
publication  of  the  gospel,  there  were  certain  crimes  which 
justice  not  only  allowed  but  required  to  be  punished  with 
death ;  which  opinion  St.  Peter  also  maintains.  But  if  it 
had  been  the  will  of  God  that  capital  punishments  should 
be  abolished,  Paul  might  have  cleared  himself,  but  he 
ought  not  to  have  left  an  impression  on  the  minds  of 
men,  that  it  was  at  that  time  equally  lawful  as  before 
to  punish  the  guilty  with  death.  Now  as  it  has  been 
proved,  that  the  coming  of  Christ  did  not  take  away  the 
right  of  inflicting  capital  punishments,  it  has  at  the  same 
time  been  proved,  that  war  may  be  made  upon  a  multi- 
tude of  armed  offenders,  who  can  only  be  brought  to 
justice  by  defeat  in  battle.  The  numbers,  the  strength 
and  boldness  of  the  aggressors,  though  they  may  have 


48  HUGO  GROTIUS 

their  weight  in  restraining  our   deliberations,  cannot  in 
the  least  diminish  our  right. 

The  substance  of  the  eleventh  argument  rests  not  only 
upon  our  Saviour's  having  abolished  those  parts  of  the 
Mosaic  law,  which  formed  a  wall  of  separation  between 
the  Jews  and  other  nations,  but  upon  his  allowing  the 
moral  parts  to  remain,  as  standing  rules,  approved  by  the 
law  of  nature,  and  the  consent  of  every  civilized  people, 
and  containing  whatever  is  good  and  virtuous. 

Now  the  punishing  of  crimes,  and  the  taking  up  arms 
to  avenge  or  ward  off  injuries  are  among  those  actions, 
which  by  the  law  of  nature  rank  as  laudable,  and  are 
referred  to  the  virtues  of  justice  and  beneficence.  And 
here  is  the  proper  place  to  animadvert  slightly  upon  the 
mistake  of  those,  who  derive  the  rights  of  war,  possessed 
by  the  Israelites,  solely  from  the  circumstance  of  God 
having  given  them  the  land  of  Canaan  and  commissioned 
them  to  drive  out  the  inhabitants.  This  may  be  one  just 
reason,  but  it  is  not  the  sole  reason. 

For,  prior  to  those  times,  holy  men  guided  by  the 
light  of  nature  undertook  wars,  which  the  Israelites  them- 
selves afterwards  did  for  various  reasons,  and  David  in 
particular,  to  avenge  the  violated  rights  of  ambassadors. 
But  the  rights,  which  any  one  derives  from  the  law  of 
nature,  are  no  less  his  own  than  if  God  had  given 
them:  nor  are  those  rights  abolished  by  the  law  of  the 
Gospel. 

VIII.  Let  us  now  consider  the  arguments,  by  which 
the  contrary  opinion  is  supported,  that  the  pious  reader 
may  judge  more  easily,  to  which  side  the  scale  inclines. 

In  the  first  place,  the  prophecy  of  Isaiah  is  generally 
alleged,  who  says  the  time  shall  come,  "when  nations 
shall  beat  their  swords  into  plow-shares,  and  turn  their 
spears  into  pruning  hooks.  Nation  shall  not  lift  up 
sword  against  nation,  neither  shall  they  learn  war  any 
more."  ii.  4.  But  this  prophecy,  like  many  others,  is  to 
be  taken  conditionally,  alluding  to  the  state  of  the  world 
that  would  take  place,  if  all  nations  would  submit  to  the 
law  of  Christ,  and  make  it  the  rule  of  life,  to  which 
purpose  God  would  suffer  nothing  to  be  wanting  on  his 
part.  For  it  is  certain,  that  if  all  people  were  Christians, 
and  lived  like  Christians,  there  would  be  no  wars,  which 
Arnobius  expresses  thus,  "If  all  men,  knowing  that  it  is 
not  their  corporeal  form  alone  which  makes  them  men, 
but  the  powers  of  the  understanding,  would  lend  a  patient 


THE   RIGHTS  OF  WAR  AND   PEACE  49 

ear  to  his  salutary  and  pacific  instructions,  if  they  would 
trust  to  his  admonitions  rather  than  to  the  swelling  pride 
and  turbulence  of  their  senses,  iron  would  be  employed 
for  instruments  of  more  harmless  and  useful  operations, 
the  world  enjoy  the  softest  repose  and  be  united  in  the 
bands  of  inviolable  treaties."  On  this  subject  Lactantius, 
reproaching  the  Pagans  with  the  deification  of  their  con- 
querors, says,  (<  what  would  be  the  consequence,  if  all  men 
would  unite  in  concord  ?  Which  might  certainly  be 
brought  to  pass,  if,  abandoning  ruinous  and  impious  rage, 
they  would  live  in  justice  and  innocence. w  Or  this  pas- 
sage of  the  prophecy  must  be  understood  literally,  and, 
if  taken  in  that  sense,  it  shews  that  it  is  not  yet  ful- 
filled, but  its  accomplishment  must  be  looked  for  in  the 
general  conversion  of  the  Jewish  people.  But,  which 
ever  way  you  take  it,  no  conclusion  can  be  drawn  from 
it  against  the  justice  of  war,  as  long  as  violent  men 
exist  to  disturb  the  quiet  of  the  lovers  of  peace.* 

IX.  In  examining  the  meaning  of  written  evidence, 
general  custom,  and  the  opinions  of  men  celebrated  for 
their  wisdom  have  usually  great  weight ;  a  practice  which 
it  is  right  to  observe  in  the  interpretation  of  holy  scrip- 
ture. For  it  is  not  likely  that  the  churches,  which  had 
been  founded  by  the  Apostles,  would  either  suddenly  or 
universally  have  swerved  from  those  opinions,  which  the 
Apostles  had  briefly  expressed,  in  writing,  and  afterwards 
more  fully  and  clearly  explained  to  them  with  their  own 
lips,  and  reduced  to  practice.  Now  certain  expressions  of 
the  primitive  Christians  are  usually  alleged  by  those  who 
are  adverse  to  all  wars,  whose  opinions  may  be  considered 
and  refuted  in  three  points  of  view. 

In  the  first  place,  from  these  expressions  nothing  more 
can  be  gathered  than  the  private  opinions  of  certain 
individuals,  but  no  public  opinion  of  the  Churches.  Besides 
these  expressions  for  the  most  part  are  to  be  found  only 
in  the  writings  of  Origen,  Tertullian  and  some  few  others, 
who  wished  to  distinguish  themselves  by  the  brilliancy 
of  their  thoughts,  without  regarding  consistency  in  their 
opinions.  For  this  same  Origen  says,  that  Bees  were 
given  by  God  as  a  pattern  for  men  to  follow  in  conduct- 
ing just,  regular,  and  necessary  wars;  and  likewise  Ter- 
tulian,  who  in  some  parts  seems  to  disapprove  of  capital 

*  The  remainder  of  this  section  is  omitted,  Grotius  himself  stating  it 
to  be  only  a  repetition  and  enlargement  of  his  arguments  immediately 
preceding  it.     (Translator. ) 
4 


50  HUGO   GROTIUS 

punishments,  has  said,  <(  No  one  can  deny  that  it  is  good 
the  guilty  should  be  punished. w  He  expresses  his  doubts 
respecting  the  military  profession,  for  in  his  book  upon 
idolatry,  he  says,  it  is  a  fit  matter  of  inquiry,  whether 
believers  can  take  up  arms,  or  whether  any  of  the  mili- 
tary profession  can  be  admitted  as  members  of  the  Chris- 
tian Church.  But  in  his  Book  entitled,  the  SOLDIER'S 
CROWN,  after  some  objections  against  the  profession  of 
arms,  he  makes  a  distinction  between  those  who  are  en- 
gaged in  the  army  before  baptism,  and  those  who  entered 
after  they  had  made  the  baptismal  vow.  "It  evidently, 
says  he  alters  the  case  with  those  who  were  soldiers  before 
their  conversion  to  Christianity;  John  admitted  them  to 
baptism,  in  one  instance  Christ  approved,  and  in  another 
Peter  instructed  a  faithful  Centurion :  yet  with  this  stipu- 
lation, that  they  must  either  like  many  others,  relinquish 
their  calling,  or  be  careful  to  do  nothing  displeasing  to 
God. "  He  was  sensible  then  that  they  continued  in  the 
military  profession  after  baptism,  which  they  would  by 
no  means  have  done,  if  they  had  understood  that  all 
war  was  forbidden  by  Christ.  They  would  have  followed 
the  example  of  the  Soothsayers,  the  Magi,  and  other  pro- 
fessors of  forbidden  arts,  who  ceased  to  practice  them, 
when  they  became  Christians.  In  the  book  quoted  above, 
commending  a  soldier,  who  was  at  the  same  time  a 
Christian,  he  says,  (<  O  Soldier  glorious  in  God. w 

The  second  observation  applies  to  the  case  of  those, 
who  declined  or  even  refused  bearing  arms,  on  account 
of  the  circumstances  of  the  times,  which  would  have  re- 
quired them  to  do  many  acts  inconsistent  with  their 
Christian  calling.  In  Dolabella's  letter  to  the  Ephesians, 
which  is  to  be  found  in  Josephus,  we  see  that  the  Jews 
requested  an  exemption  from  military  expeditions,  be- 
cause, in  mingling  with  strangers,  they  could  not  con- 
veniently have  observed  the  rites  of  their  own  laws  and 
would  have  been  obliged  to  bear  arms,  and  to  make  long 
marches  on  the  Sabbaths.  And  we  are  informed  by 
Josephus  that,  for  the  same  reasons,  the  Jews  obtained 
their  discharge  of  L.  Lentulus.  In  another  part,  he  re- 
lates that  when  the  Jews  had  been  ordered  to  leave  the 
city  of  Rome,  some  of  them  inlisted  in  the  army,  and 
that  others,  who  out  of  respect  to  the  laws  of  their  coun- 
try, for  the  reasons  before  mentioned,  refused  to  bear 
arms,  were  punished.  In  addition  to  these  a  third  rea- 
son may  be  given,  which  was  that  they  would  have  to 


THE   RIGHTS   OF   WAR  AND   PEACE  51 

fight  against  their  own  people,  against  whom  it  was  un- 
lawful to  bear  arms,  especially  when  they  incurred  dan- 
ger and  enmity  for  adhering  to  the  Mosaic  law.  But 
the  Jews,  whenever  they  could  do  it,  without  these  in- 
conveniences, served  under  foreign  princes,  previously 
stipulating,  as  we  are  informed  by  Josephus,  for  liberty 
to  live  according  to  the  laws  and  rules  of  their  own 
country.  Tertullian  objects  to  the  military  service  of  his 
own  times  on  account  of  dangers,  and  inconveniences  very 
similar  to  those,  which  deterred  the  Jews.  In  his  book  on 
Idolatry,  he  says,  (<  it  is  impossible  to  reconcile  the  oath  of 
fidelity  to  serve  under  the  banners  of  Christ,  with  that 
to  serve  under  the  banners  of  the  Devil. B  Because  the 
soldiers  were  ordered  to  swear  by  Jupiter,  Mars,  and  the 
other  Heathen  Gods.  And  in  his  book  on  the  Soldier's 
Crown,  he  asks,  (<if  the  soldier  be  to  keep  watch  before 
the  temples,  which  he  has  renounced,  to  sup  where  he  is 
forbidden  by  the  Apostle,  and  to  guard  in  the  night  the 
Gods,  whom  he  has  abjured  in  the  day  ? w  And  he  pro- 
ceeds with  asking,  <(if  there  be  not  many  other  military 
duties,  which  ought  to  be  regarded  in  the  light  of  sins  ?  w 

The  third  point  of  view,  in  which  the  subject  is  to  be 
considered,  relates  to  the  conduct  of  those  primitive 
Christians,  who,  in  the  ardour  of  zeal,  aimed  at  the 
most  brilliant  attainments,  taking  the  divine  counsels  for 
precepts  of  obligation.  The  Christians,  says  Athenagoras, 
never  go  to  law  with  those,  who  rob  them. 

Salvian  says,  it  was  commanded  by  Christ  that  we 
should  relinquish  the  object  of  dispute,  rather  than  en- 
gage in  law  suits.  But  this,  taken  in  so  general  an  ac- 
ceptation, is  rather  by  the  way  of  counsel,  in  order  to 
attain  to  a  sublimer  mode  of  life,  than  intended  as  a 
positive  precept.  Thus  many  of  the  primitive  Fathers 
condemned  all  oaths  without  exception,  yet  St.  Paul,  in 
matters  of  great  importance,  made  use  of  these  solemn 
appeals  to  God.  A  Christian  in  Tatian  said,  <(  I  refuse 
the  office  of  Praetor, }>  and  in  the  words  of  Tertullian,  w  a 
Christian  is  not  ambitious  of  the  Aedile's  office. a  In  the 
same  manner  Lactantius  maintains  that  a  just  man,  such 
as  he  wishes  a  Christian  to  be,  ought  not  to  engage  in 
war,  nor,  as  all  his  wants  can  be  supplied  at  home,  even 
to  go  to  sea.  How  many  of  the  primitive  fathers  dis- 
suade Christians  from  second  marriages  ?  All  these 
counsels  are  good,  recommending  excellent  attainments, 
highly  acceptable  to  God,  yet  they  are  not  required  of 


52  HUGO   GROTIUS 

us,  by  any  absolute  law.  The  observations  already  made 
are  sufficient  to  answer  the  objections  derived  from  the 
primitive  times  of  Christianity. 

Now  in  order  to  confirm  our  opinions,  we  may  observe 
that  they  have  the  support  of  writers,  even  of  greater 
antiquity,  who  think  that  capital  punishments  may  be 
inflicted,  and  that  wars,  which  rest  upon  the  same  author- 
ity, may  be  lawfully  engaged  in  by  Christians.  Clem- 
ens Alexandrinus  says,  that  (<a  Christian,  if,  like  Moses, 
he  be  called  to  the  exercise  of  sovereign  power,  will  be 
a  living  law  to  his  subjects,  rewarding  the  good,  and  pun- 
ishing the  wicked. >J  And,  in  another  place,  describing 
the  habit  of  a  Christian,  he  says,  <(it  would  become  him 
to  go  barefoot,  unless  he  were  a  soldier.  *  In  the  work 
usually  entitled  the  CONSTITUTIONS  OF  CLEMENS  ROMANUS, 
we  find  that  (<it  is  not  all  killing  which  is  considered 
unlawful,  but  only  that  of  the  innocent;  yet  the  admin- 
istration of  judicial  punishments  must  be  reserved  to  the 
supreme  power  alone. M  But  without  resting  upon  indi- 
vidual authorities,  we  can  appeal  to  the  public  authority 
of  the  church  which  ought  to  have  the  greatest  weight. 
From  hence  it  is  evident  that  none  were  ever  refused 
baptism,  or  excommunicated  by  the  church,  merely  for 
bearing  arms,  which  they  ought  to  have  been,  had  the 
military  profession  been  repugnant  to  the  terms  of  the 
new  covenant.  In  the  CONSTITUTIONS  just  quoted, 
the  writer  speaking  of  those  who,  in  the  primitive  times, 
were  admitted  to  baptism,  or  refused  that  ordinance, 
says,  w  let  a  soldier  who  desires  to  be  admitted  be  taught 
to  forbear  from  violence,  and  false  accusations,  and  to  be 
content  with  his  regular  pay.  If  he  promises  obedience 
let  him  be  admitted."  Tertullian  in  his  Apology,  speak- 
ing in  the  character  of  Christians,  says,  <(We  sail  along 
with  you,  and  we  engage  in  the  same  wars,*  having  a 
little  before  observed,  (<  we  are  but  strangers,  yet  we 
have  filled  all  your  cities,  your  islands,  your  castles,  your 
municipal  towns,  your  councils,  and  even  your  camps." 
He  had  related  in  the  same  book  that  rain  had  been  ob- 
tained for  the  Emperor  Marcus  Aurelius  by  the  prayers 
of  the  Christian  soldiers.*  In  his  book  of  the  crown,  he 
commends  a  soldier,  who  had  thrown  away  his  garland, 
for  a  courage  superior  to  that  of  his  brethren  in  arms, 

*Grotius  does  not  vouch  for  the  truth  of  this  assertion,  but  only 
quotes  the  passage  to  shew  there  were  CHRISTIANS  in  the  army  of 
Marcus  Aurelius. 


THE   RIGHTS   OF  WAR  AND   PEACE  53 

and  informs  us   that   he   had   many   Christian  fellow  sol- 
diers. 

To  these  proofs  may  be  added  the  honours  of  Martyr- 
dom given  by  the  Church  to  some  soldiers,  who  had  been 
cruelly  persecuted,  and  had  even  suffered  death  for  the  sake 
of  Christ,  among  whom  are  recorded  three  of  St.  Paul's 
companions,  Cerialis  who  suffered  martyrdom  under 
Decius;  Marinus  under  Valerian;  fifty  under  Aurelian, 
Victor,  Maurus,  and  Valentinus,  a  lieutenant  general 
under  Maximian.  About  the  same  time  Marcellus  the 
Centurion,  Severian  under  Licinius.  Cyprian,  in  speaking 
or  Laurentinus,  and  Ignatius,  both  Africans,  says,  "They 
too  served  in  the  armies  of  earthly  princes,  yet  they  were 
truly  spiritual  soldiers  of  God,  defeating  the  wiles  of  the 
Devil  by  a  steady  confession  of  the  name  of  Christ,  and 
earning  the  palms  and  crowns  of  the  Lord  by  their 
sufferings. w  And  from  hence  it  is  plain  what  was  the 
general  opinion  of  the  primitive  Christians  upon  war, 
even  before  the  Emperors  became  Christians. 

It  need  not  be  thought  surprising,  if  the  Christians  of 
those  times  were  unwilling  to  appear  at  trials  for  life, 
since,  for  the  most  part,  the  persons  to  be  tried  were 
Christians.  In  other  respects  too,  besides  being  unwilling 
to  witness  the  unmerited  sufferings  of  their  persecuted 
brethren,  the  Roman  laws  were  more  severe  than  Chris- 
tian lenity  could  allow  of,  as  may  be  seen  from  the  single 
instance  of  the  Silanian  decree  of  the  Senate.*  Indeed 
capital  punishments  were  not  abolished  even  after  Con- 
stantine  embraced  and  began  to  encourage  the  Christian 
religion.  He  himself  among  other  laws  enacted  one 
similar  to  that  of  the  ancient  Romans,  for  punishing 
parricides,  by  sewing  them  in  a  sack  with  certain  animals, 
and  throwing  them  into  the  sea,  or  the  nearest  river. 
This  law  is  to  be  found  in  his  code  under  the  *  title  of 
the  murders  of  parents  or  children. w  Yet  in  other  respects 
he  was  so  gentle  in  punishing  criminals,  that  he  is  blamed 
by  many  historians  for  his  excessive  lenity.  Constantine, 
we  are  informed  by  historians,  had  at  that  time  many 

*  By  the  Silanian  decree  of  the  Senate,  it  was  ordered  that  if  a  master 
happened  to  be  murdered  in  his  own  house,  all  the  slaves  under  the 
same  roof  should  be  put  to  death;  even  though  no  proof  appeared  of 
their  being  concerned  in  the  murder.  We  have  an  example  of  the  case 
in  Tacitus.  Annal.  v.  xiv.  ch.  xlii.  The  Emperor  Adrian  softened  the 
rigour  of  that  decree,  by  ordering  that  only  they  should  be  exposed  to 
the  rack,  who  were  near  enough  to  have  heard  some  noise.  Spartian, 
Life  of  Adrian,  ch.  xviii. 


54  HUGO   GROTIUS 

Christians  in  his  army,  and  he  used  the  name  of  Christ 
as  the  motto  upon  his  standards.  From  that  time  too 
the  military  oath  was  changed  to  the  form,  which  is 
found  in  Vegetius,  and  the  soldier  swore,  <(  By  God,  and 
Christ,  and  the  holy  spirit,  and  the  majesty  of  the 
Emperor,  to  whom  as  next  to  God,  homage  and  rever- 
ence are  due  from  mankind. }>  Nor  out  of  so  many  Bishops 
at  that  time,  many  of  whom  suffered  the  most  cruel 
treatment  for  their  religion,  do  we  read  of  a  single  one, 
who  dissuaded  Constantine,  by  the  terrors  of  divine  wrath 
from  inflicting  capital  punishments,  or  prosecuting  wars, 
or  who  deterred  the  Christians,  for  the  same  reasons, 
from  serving  in  the  armies.  Though  most  of  those 
Bishops  were  strict  observers  of  discipline,  who  would  by 
no  means  dissemble  in  points  relating  to  the  duty  of  the 
Emperors  or  of  others.  Among  this  class,  in  the  time 
of  Theodosius,  we  may  rank  Ambrose,  who  in  his  seventh 
discourse  says,  <(  there  is  nothing  wrong  in  bearing  arms ; 
but  to  bear  arms  from  motives  of  rapine  is  a  sin  indeed, y> 
and  in  his  first  book  of  Offices,  he  maintains  the  same 
opinion,  that  <(  the  courage  which  defends  one's  country 
against  the  incursions  of  barbarians,  or  protects  one's 
family  and  home  from  the  attacks  of  robbers,  is  complete 
justice. w  These  arguments  so  decidedly  shew  the  opinions 
of  the  primitive  Christians  in  the  support  of  just  and 
necessary  war,  that  the  subject  requires  no  farther  proof 
or  elucidation. 

Nor  is  the  argument  invalidated  by  a  fact  pretty  gen- 
erally known,  that  Bishops  and  other  Christians  often 
interceded  in  behalf  of  criminals,  to  mitigate  the  pun- 
ishment of  death,  and  that  any,  who  had  taken  refuge 
in  churches,  were  not  given  up,  but  upon  the  promise  of 
their  lives  being  spared.  A  custom  was  introduced  like- 
wise of  releasing  all  prisoners  about  the  time  of  Easter. 
But  all  these  instances,  if  carefully  examined,  will  be 
found  the  voluntary  acts  of  Christian  kindness,  embrac- 
ing every  opportunity  to  do  good,  and  not  a  settled  point 
of  public  opinion  condemning  all  capital  punishments. 
Therefore  those  favours  were  not  universal;  but  limited 
to  times  and  places,  and  even  the  intercessions  them- 
selves were  modified  with  certain  exceptions.* 

*As  Grotius  has  so  fully  established  his  argument,  it  is  unneces- 
sary to  review  his  answer  to  further  objections. — (TRANSLATOR.) 


CHAPTER    III. 

THE    DIVISION    OF    WAR   INTO   PUBLIC    AND   PRIVATE  AND 
THE  NATURE  OF  SOVEREIGN  POWER. 

The  Division  of  War  into   public  and   private  —  Examples  to  prove 

that  all  private  War  is  not  repugnant  to  the  Law  of  Nature  since 

the  erection  of  Courts  of  Justice — The  Division  of  Public  War  into 

formal,  and  informal  —  Whether  the  suppression  of  Tumults  by 

subordinate  Magistrates  be  properly  public  War — Civil  Power,  in 

^what  it  consists  —  Sovereign  Power  further  considered — The  opinion 

/  f*  ?  ( of  those,  who  maintain  that  the  Sovereign  Power  is  always  in  the 

vpeople,  refuted,  and  their  arguments  answered  —  Mutual  subjection 

O     refuted  —  Cautions  requisite  to  understand  the  nature  of  Sovereign 

Power — Distinction  of  the  real  differences  that  exist  under  similar 

names  —  Distinction  between  the  right  to  Sovereign  Power,  and  the 

mode  of  exercising  it 

i.  THE  first  and  most  necessary  divisions  of  war  are 
into  one  kind  called  private,  another  public,  and  another 
mixed.  Now  public  war  is  carried  on  by  the  person 
holding  the  sovereign  power.  Private  war  is  that  which 
is  carried  on  by  private  persons  without  authority  from 
the  state.  A  mixed  war  is  that  which  is  carried  on,  on 
one  side  by  public  authority,  and  on  the  other  by  private 
persons.  But  private  war,  from  its  greater  antiquity,  is 
the  first  subject  for  inquiry. 

The  proofs  that  have  been  already  produced,  to  shew  that 
to  repel  violence  is  not  repugnant  to  natural  law,  afford 
a  satisfactory  reason  to  justify  private  war,  as  far  as  the 
law  of  nature  is  concerned.  But  perhaps  it  may  be 
thought  that  since  public  tribunals  have  been  erected, 
private  redress  of  wrongs  is  not  allowable.  An  objection 
which  is  very  just.  Yet  although  public  trials  and  courts 
of  justice  are  not  institutions  of  nature,  but  erected  by 
the  invention  of  men,  yet  as  it  is  much  more  conducive 
to  the  peace  of  society  for  a  matter  in  dispute  to  be  de- 
cided by  a  disinterested  person,  than  by  the  partiality 
and  prejudice  of  the  party  aggrieved,  natural  justice  and 
reason  will  dictate  the  necessity  and  advantage  of  every 
one's  submitting  to  the  equitable  decisions  of  public 
judges.  Paulus,  the  Lawyer,  observes  that  w  what  can  be 
done  by  a  magistrate  with  the  authority  of  the  state, 

(55) 


56  HUGO   GROTIUS 

should  never  be  intrusted  to  individuals;  as  private  re- 
dress would  give  rise  to  greater  disturbance.  And  athe 
reason,  says  King  Theodoric,  why  laws  were  invented, 
was  to  prevent  any  one  from  using  personal  violence, 
for  wherein  would  peace  differ  from  all  the  confusion  of 
war,  if  private  disputes  were  terminated  by  force?*  And 
the  law  calls  it  force  for  any  man  to  seize  what  he  thinks 
his  due,  without  seeking  a  legal  remedy. 

II.  It  is  a  matter  beyond  all  doubt  that  the  liberty  of 
private  redress,  which  once  existed,  was  greatly  abridged 
after  courts  of  justice  were  established.  Yet  there  may 
be  cases,  in  which  private  redress  must  be  allowed,  as 
for  instance,  if  the  way  to  legal  justice  were  not  open. 
For  when  the  law  prohibits  any  one  from  redressing  his 
own  wrongs,  it  can  only  be  understood  to  apply  to  cir- 
cumstances where  a  legal  remedy  exists.  Now  the  ob- 
struction in  the  way  to  legal  redress  may  be  either 
temporary  or  absolute.  Temporary,  where  it  is  impossible 
for  the  injured  party  to  wait  for  a  legal  remedy,  without 
imminent  danger  and  even  destruction.  As  for  instance, 
if  a  man  were  attacked  in  the  night,  or  in  a  secret  place 
where  no  assistance  could  be  procured.  Absolute,  either 
as  the  right,  or  the  fact  may  require.  Now  there  are 
many  situations,  where  the  right  must  cease  from  the 
impossibility  of  supporting  it  in  a  legal  way,  as  in  un- 
occupied places,  on  the  seas,  in  a  wilderness,  or  desert 
island,  or  any  other  place,  where  there  is  no  civil  gov- 
ernment. All  legal  remedy  too  ceases  by  fact,  when  sub- 
jects will  not  submit  to  the  judge,  or  if  he  refuses 
openly  to  take  cognizance  of  matters  in  dispute.  The 
assertion  that  all  private  war  is  not  made  repugnant  to 
the  law  of  nature  by  the  erection  of  legal  tribunals,  may 
be  understood  from  the  law  given  to  the  Jews,  wherein 
God  thus  speaks  by  the  mouth  of  Moses,  Exod.  xxii.  2. 
<(  If  a  thief  be  found  breaking  up,  that  is,  by  night,  and 
be  smitten  that  he  dies,  there  shall  no  blood  be  shed  for 
him,  but  if  the  sun  be  risen  upon  him,  there  shall  be 
blood  shed  for  him  w  Now  this  law,  making  so  accurate 
a  distinction  in  the  merits  of  the  case,  seems  not  only  to 
imply  impunity  for  killing  any  one,  in  self-defence,  but 
to  explain  a  natural  right,  founded  not  on  any  special 
divine  command,  but  on  the  common  principles  of  jus- 
tice. From  whence  other  nations  have  plainly  followed 
the  same  rule.  The  passage  of  the  twelve  tables  is  well 
known,  undoubtedly  taken  from  the  old  Athenian  Law, 


THE   RIGHTS  OF  WAR  AND   PEACE  57 

"If  a  thief  commit  a  robbery  in  the  night,  and  a  man 
kill  him,  he  is  killed  lawfully.  w  Thus  by  the  laws  of  all 
known  and  civilized  nations,  the  person  is  judged  inno- 
cent, who  kills  another,  forcibly  attempting  or  endanger- 
ing his  life;  a  conspiring  and  universal  testimony,  which 
proves  that  in  justifiable  homicide,  there  is  nothing  re- 
pugnant to  the  law  of  nature. 

IV.*  Public  war,  according  to  the  law  of  nations,  is 
either  SOLEMN,  that  is  FORMAL,  or  LESS  SOLEMN,  that  is 
INFORMAL.  The  name  of  lawful  war  is  commonly  given 
to  what  is  here  called  formal,  in  the  same  sense  in  which 
a  regular  will  is  opposed  to  a  codicil,  or  a  lawful  marriage 
to  the  cohabitation  of  slaves.  This  opposition  by  no  means 
implies  that  it  is  not  allowed  to  any  man,  if  he  pleases, 
to  make  a  codicil,  or  to  slaves  to  cohabit  in  matrimony, 
but  only,  that,  by  the  civil  law,  FORMAL  WILLS  and  SOLEMN 
MARRIAGES,  were  attended  with  peculiar  privileges  and 
effects.  These  observations  were  the  more  necessary; 
because  many,  from  a  misconception  of  the  word  just  or 
lawful,  think  that  all  wars,  to  which  those  epithets  do  not 
apply,  are  condemned  as  unjust  and  unlawful.  Now  to 
give  a  war  the  formality  required  by  the  law  of  nations, 
two  things  are  necessary.  In  the  first  place  it  must  be 
made  on  both  sides,  by  the  sovereign  power  of  the  state, 
and  in  the  next  place  it  must  be  accompanied  with  cer- 
tain formalities.  Both  of  which  are  so  essential  that  one 
is  insufficient  without  the  other. 

Now  a  public  war,  LESS  SOLEMN,  may  be  made  without 
those  formalities,  even  against  private  persons,  and  by  any 
magistrate  whatever.  And  indeed,  considering  the  thing 
without  respect  to  the  civil  law,  every  magistrate,  in  case 
of  resistance,  seems  to  have  a  right  to  take  up  arms,  to 
maintain  his  authority  in  the  execution  of  his  office;  as  well 
as  to  defend  the  people  committed  to  his  protection.  But 
as  a  whole  state  is  by  war  involved  in  danger,  it  is  an 
established  law  in  almost  all  nations  that  no  war  can  be 
made  but  by  the  authority  of  the  sovereign  in  each  state. 
There  is  such  a  law  as  this  in  the  last  book  of  Plato  ON 
LAWS.  And  by  the  Roman  law,  to  make  war,  or  levy 
troops  without  a  commission  from  the  Prince  was  high 
treason.  According  to  the  Cornelian  law  also,  enacted  by 
Lucius  Cornelius  Sylla,  to  do  so  without  authority  from 

*  As  the  topics  of  the  third  section  have  been  so  fully  stated  in  the 
second  chapter,  that  section  has  been  omitted,  and  the  translation  goes 
on  from  the  second  of  the  original  to  the  fourth.  (Translator.) 


58  HUGO   GROTIUS 

the  people  amounted  to  the  same  crime.  In  the  code  of 
Justinian  there  is  a  constitution,  made  by  Valentinian 
and  Valens,  that  no  one  should  bear  arms  without  their 
knowledge  and  authority.  Conformably  to  this  rule,  St. 
Augnstin  says,  that  as  peace  is  most  agreeable  to  the 
natural  state  of  man,  it  is  proper  that  Princes  should  have 
the  sole  authority  to  devise  and  execute  the  operations  of 
war.  Yet  this  general  rule,  like  all  others,  in  its  appli- 
cation must  always  be  limited  by  equity  and  discretion. 

In  certain  cases  this  authority  may  be  communicated  to 
others.  For  it  is  a  point  settled  beyond  all  doubt  that 
subordinate  magistrates  may,  by  their  officers,  reduce  a 
few  disobedient  and  tumultuous  persons  to  subjection, 
provided,  that  to  do  it,  it  requires  not  a  force  of  such 
enormous  magnitude  as  might  endanger  the  state.  Again, 
if  the  danger  be  so  imminent  as  to  allow  of  no  time  for 
an  application  to  the  sovereign  executive  power,  here  too 
the  necessity  is  admitted  as  an  exception  to  the  general 
rule.  Lucius  Pinarius  the  Governor  of  Enna,  a  Sicilian 
garrison,  presuming  upon  this  right,  upon  receiving  cer- 
tain information  that  the  inhabitants  had  formed  a  con- 
spiracy to  revolt  to  the  Carthaginians,  put  them  all  to 
the  sword,  and  by  that  means  saved  the  place.  Francis- 
cus  Victoria  allows  the  inhabitants  of  a  town  to  take  up 
arms,  even  without  such  a  case  of  necessity,  to  redress 
their  own  wrongs,  which  the  Prince  neglects  to  avenge, 
but  such  an  opinion  is  justly  rejected  by  others. 

V.  Whether  the  circumstances,  under  which  subordi- 
nate magistrates  are  authorised  to  use  military  force,  can 
properly  be  called  public  war  or  not,  is  a  matter  of  dis- 
pute among  legal  writers,  some  affirming  and  others  de- 
nying it.  If  indeed  we  call  no  other  public  war,  but  that 
which  is  made  by  magisterial  authority,  there  is  no  doubt 
but  that  such  suppressions  of  tumult  are  public  wars, 
and  those  who  in  such  cases  resist  the  magistrate  in  the 
execution  of  his  office,  incur  the  guilt  of  rebellion  against 
superiors.  But  if  public  war  is  taken  in  the  higher  sense 
of  FORMAL  war,  as  it  undoubtedly  often  is ;  those  are  not 
public  wars;  because  to  entitle  them  to  the  full  rights  of 
such,  the  declaration  of  the  sovereign  power  and  other 
requisites  are  wanting.  Nor  do  the  loss  of  property  and 
the  military  executions,  to  which  the  offenders  are  sub- 
ject, at  all  affect  the  question.*  For  those  casualties  are 

*  In  case  of  rebellion,  the  subjects  taken  in  arms,  have  no  right  to  be 
treated  as  prisoners  of  war,  but  are  liable  to  punishment  as  criminals. 


THE   RIGHTS   OF  WAR  AND   PEACE  59 

not  so  peculiarly  attached  to  formal  war,  as  to  be  ex- 
cluded from  all  other  kinds.  For  it  may  happen,  as  in 
an  extensive  empire  for  instance,  that  persons  in  subor- 
dinate authority,  may,  when  attacked,  or  threatened  with 
attack,  have  powers  granted  to  commence  military  opera- 
tions. In  which  case  the  war  must  be  supposed  to  com- 
mence by  the  authority  of  the  sovereign  power;  as  a 
person  is  considered  to  be  the  author  of  a  measure  which 
by  virtue  of  his  authority  he  empowers  another  to  per- 
form. The  more  doubtful  point  is,  whether,  where  there 
is  no  such  commission,  a  conjecture  of  what  is  the  will 
of  the  sovereign  power  be  sufficient.  This  seems  not  ad- 
missible. For  it  is  not  sufficient  to  consider,  what  we 
suppose  would  be  the  Sovereign's  pleasure,  if  he  were 
consulted;  but  what  would  be  his  actual  will,  in  matters 
admitting  of  time  for  deliberation,  even  though  he  were 
not  formally  consulted;  if  a  law  was  to  be  passed  upon 
those  matters.  "  For  though  UNDER  SOME  PARTICULAR  CIR- 
CUMSTANCES, it  may  be  necessary  to  waive  consulting  the 
will  of  the  sovereign,  yet  this  would  by  no  means  au- 
thorise it  as  a  GENERAL  PRACTICE.  For  the  safety  of  the 
state  would  be  endangered,  if  subordinate  powers  should 
usurp  the  right  of  making  war  at  their  discretion.  It  was 
not  without  reason,  that  Cneus  Manlius  was  accused  by 
his  Lieutenants  of  having  made  war  upon  the  Galatians 
without  authority  from  the  Roman  people.  For  though 
the  Galatians  had  supplied  Antiochus  with  troops,  yet  as 
peace  had  been  made  with  him,  it  rested  with  the  Roman 
people,  and  not  with  Manlius  to  determine  in  what  man- 
ner the  Galatians  should  be  punished  for  assisting  an 
enemy.  Cato  proposed  that  Julius  Caesar  should  be  de- 
livered up  to  the  Germans  for  having  attacked  them  in 
violation  of  his  promise,  a  proposal  proceeding  rather 
from  the  desire  to  be  rid  of  a  formidable  rival,  than 
from  any  principle  of  justice. 

The  case  was  thus;  the  Germans  had  assisted  the 
Gauls,  enemies  of  the  Roman  people,  therefore  they  had 
no  reason  to  complain  of  the  injury  done  to  them,  if 
the  war  against  the  Gauls,  in  which  they  had  made 
themselves  a  party  concerned,  was  just.  But  Caesar  ought 
to  have  contented  himself  with  driving  the  Germans  out 
of  Gaul,  the  province  assigned  him,  without  pursuing 
them  into  their  own  country,  especially  as  there  was  no 
farther  danger  to  be  apprehended  from  them;  unless  he 
had  first  consulted  the  Roman  people.  It  was  plain,  then, 


60  HUGO  GROTIUS 

the  Germans  had  no  right  to  demand  the  surrender  of 
Caesar's  person,  though  the  Romans  had  a  right  to  pun- 
ish him  for  having  exceeded  his  commission.  On  a 
similar  occasion  the  Carthaginians  answered  the  Romans  ; 
<(  It  is  not  the  subject  of  inquiry  whether  Hannibal  has 
besieged  Saguntum,  by  his  own  private  or  by  public  author- 
ity, but  whether  justly  or  unjustly.  For  with  respect  to 
one  of  our  own  subjects  it  is  our  business  to  inquire  by 
what  authority  he  has  acted;  but  the  matter  of  dis- 
cussion with  you  is,  whether  he  has  broken  any  treaty." 
Cicero  defends  the  conduct  of  Octavius  and  Decimus 
Brutus,  who  had  taken  up  arms  against  Antony.  But 
though  it  was  evident  that  Antony  deserved  to  be  treated 
as  an  enemy,  yet  they  ought  to  have  waited  for  the 
determination  of  the  Senate  and  people  of  Rome,  whether 
it  were  for  the  public  interest  not  to  take  notice  of  his 
conduct  or  to  punish  it,  to  agree  to  terms  of  peace 
with  him,  or  to  have  recourse  to  arms.  This  would  have 
been  proper;  for  no  one  is  obliged  to  exercise  the  right 
of  punishing  an  enemy,  if  it  is  attended  with  probable 
danger. 

But  even  if  it  had  been  judged  expedient  to  declare 
Antony  an  enemy,  the  choice  of  the  persons  to  conduct 
the  war  should  have  been  left  to  the  Senate  and  people 
of  Rome.  Thus  when  Cassius  demanded  assistance  of 
the  Rhodians,  according  to  treaty,  they  answered  they 
would  send  it,  if  the  senate  thought  proper.  This  refu- 
tation of  Cicero's  opionion  will  serve,  along  with  many 
other  instances  to  be  met  with;  as  an  admonition  not  to 
be  carried  away  by  the  opinions  of  the  most  celebrated 
writers,  particularly  the  most  brilliant  orators,  who  often 
speak  to  suit  the  circumstances  of  the  moment.  But  all 
political  investigation  requires  a  cool  and  steady  judg- 
ment, not  to  be  biased  by  examples,  which  may  rather 
be  excused  than  vindicated. 

Since  then  it  has  already  been  established  that  no  war 
can  lawfully  be  made  but  by  the  sovereign  power  of 
each  state,  in  respect  to  all  the  questions  connected  with 
war,  it  will  be  necessary  to  examine  what  that  sovereign 
power  is,  and  who  are  the  persons  that  hold  it. 

VI.  The  moral  power  then  of  governing  a  state,  which 
is  called  by  Thucydides  the  civil  power,  is  described  as 
consisting  of  three  parts  which  form  the  necessary  sub- 
stance of  every  state ;  and  those  are  the  right  of  making 
its  own  laws,  executing  them  in  its  own  manner,  and 


THE   RIGHTS   OF  WAR   AND   PEACE  61 

appointing  its  own  magistrates.  Aristotle,  in  the  fourth 
book  of  his  Politics,  comprises  the  sovereignty  of  a  state 
in  the  exercise  of  the  deliberative,  executive,  and  judicial 
powers.  To  the  deliberative  branch  he  assigns  the  right 
of  deciding  upon  peace  or  war,  making  or  annulling 
treaties,  and  framing  and  passing  new  laws.  To  these 
he  adds  the  power  of  inflicting  death,  banishment,  and 
forfeiture,  and  of  punishing  also  for  public  peculation. 
In  the  exercise  of  judicial  power,  he  includes  not  only 
the  punishment  of  crimes  and  misdemeanors,  but  the 
redress  of  civil  injuries.*  Dionysitis  of  Halicarnassus, 
points  out  three  distinguishing  marks  of  sovereign  power; 
and  those  are,  the  right  of  appointing  magistrates,  the 
right  of  enacting  and  repealing  laws,  and  the  right  of 
making  war  and  peace.  To  which,  in  another  part,  he 
adds  the  administration  of  justice,  the  supreme  authority 
in  matters  of  religion,  and  the  right  of  calling  general 
councils. 

A  true  definition  comprehends  every  possible  branch 
of  authority  that  can  grow  out  of  the  possession  and 
exercise  of  sovereign  power.  For  the  ruler  of  every  state 
must  exercise  his  authority  either  in  person,  or  through 
the  medium  of  others.  His  own  personal  acts  must  be 
either  general  or  special.  He  may  be  said  to  do  GENERAL 
acts  in  passing  or  repealing  laws,  respecting  either  tem- 
poral matters,  or  spiritual  concerns,  as  far  as  the  latter 
relate  to  the  welfare  of  the  state.  The  knowledge  of 
these  principles  is  called  by  Aristotle  the  masterpiece  in 
the  science  of  government. 

The  particular  acts  of  the  Sovereign  are  either  di- 
rectly of  a  public  nature,  or  a  private,  but  even  the  lat- 
ter bear  reference  to  his  public  capacity.  Now  the  acts 
of  the  sovereign  executive  power  of  a  directly  public  kind 
are  the  making  of  peace  and  war  and  treaties,  and  the  im- 
position of  taxes,  and  other  similar  exercises  of  authority 
over  the  persons  and  property  of  its  subjects,  which  con- 
stitute the  sovereignty  of  the  state.  Aristotle  calls  the 
knowledge  of  this  practice  political  and  deliberative 
science. 

*«  Wrongs  are  divisible  into  two  sorts  or  species,  PRIVATE  WRONGS, 
and  PUBLIC  WRONGS.  The  former  are  an  infringement  or  privation  of  the 
private  or  civil  rights  belonging  to  individuals,  considered  as  individuals, 
and  are  therefore  frequently  termed  civil  injuries ;  the  latter  are  a  breach 
and  violation  of  public  rights  and  duties  which  affect  the  whole  com- 
munity considered  as  a  community,  and  are  distinguished  by  the  harsher 
appellation  of  crimes  and  misdemeanors. » — BlacksL  Com.  b.  iii  c.  i. 


62  HUGO   GROTIUS 

The  private  acts  of  the  sovereign  are  those,  in  which 
by  his  authority,  disputes  between  individuals  are  decided, 
as  it  is  conducive  to  the  peace  of  society  that  these  should 
be  settled.  This  is  called  by  Aristotle  the  judicial  power. 
Thus  the  acts  of  the  sovereign  are  done  in  his  name  by 
his  magistrates  or  other  officers,  among  whom  ambassa- 
dors are  reckoned.  And  in  the  exercise  of  all  those  rights 
sovereign  power  consists. 

VII.  That  power  is  called  sovereign,  whose  actions  are 
not  subject  to  the  controul  of  any  other  power,  so  as  to  be 
annulled  at  the  pleasure  of  any  other  human  will.  The 
term  ANY  OTHER  HUMAN  WILL  exempts  the  sovereign  him- 
self from  this  restriction,  who  may  annul  his  own  acts,  as 
may  also  his  successor,  who  enjoys  the  same  right,  hav- 
ing the  same  power  and  no  other.  We  are  to  consider 
then  what  is  the  subject  in  which  this  sovereign  power 
exists.  Now  the  subject  is  in  one  respect  common,  and  in 
another  proper,  as  the  body  is  the  common  subject  of 
sight,  the  eye  the  proper,  so  the  common  subject  of 
sovereign  power  is  the  state,  which  has  already  been  said 
to  be  a  perfect  society  of  men. 

Now  those  nations,  who  are  in  a  state  of  subjugation 
to  another  power,  as  the  Roman  provinces  were,  are  ex- 
cluded from  this  definition.  For  those  nations  are  not 
sovereign  states  of  themselves,  in  the  present  acceptation 
of  the  word;  but  are  subordinate  members  of  a  great 
state,  as  slaves  are  members  of  a  household.  Again  it 
happens  that  many  states,  forming  each  an  independent 
body,  may  have  one  head.  For  political  are  not  like 
natural  bodies,  to  only  one  of  which  the  same  head  can 
belong.  Whereas  in  the  former,  one  person  can  exercise 
the  function  of  the  head  to  many  distinct  bodies.  As  a 
certain  proof  of  which,  when  the  reigning  house  has  be- 
come extinct,  the  sovereign  power  returns  to  the  hands 
of  the  nation.  So  it  may  happen,  that  many  states  may 
be  connected  together  by  the  closest  federal  union,  which 
Strabo,  in  more  places  than  one  calls  a  system,  and  yet 
each  retain  the  condition  of  a  perfect,  individual  state, 
which  has  been  observed  by  Aristotle  and  others  in  dif- 
ferent parts  of  their  writings.  Therefore  the  common 
subject  of  sovereign  power  is  the  state,  taken  in  the 
sense  already  explained.  The  proper  subject  is  one  or 
more  persons  according  to  the  laws  and  customs  of  each 
nation.  This  is  called  by  Galen  in  the  sixth  book  DE 
PLACITIS  HIPPOCRAT  EX  PLATONis,  the  first  power  of  the  state. 


THE   RIGHTS  OF  WAR  AND   PEACE  63 

VIII.  And  here  is  the  proper  place  for  refuting  the 
opinion  of  those,  who  maintain  that,  every  where  and 
without  exception,  the  sovereign  power  is  vested  in  the 
people,  so  that  they  have  a  right  to  restrain  and  punish 
kings  for  an  abuse  of  their  power.  However  there_is  no 
man  of  sober  wisdom,  who  does  not  see  the  incalculable 
mischiefs,  which  such  opinions  have  occasioned,  and  may 
still  occasion;  and  upon  the  following  grounds  they  may 
be  refuted. 

From  the  Jewish,  as  well  as  the  Roman  Law,  it  appears 
that  any  one  might  engage  himself  in  private  servitude 
to  whom  he  pleased.  Now  if  an  individual  may  do  so, 
why  may  not  a  whole  people,  for  the  benefit  of  better 
government  and  more  certain  protection,  completely  trans- 
fer their  sovereign  rights  to  one  or  more  persons,  with- 
out reserving  any  portion  to  themselves  ?  Neither  can  it 
be  alledged  that  such  a  thing  is  not  to  be  presumed,  for 
the  question  is  not,  what  is  to  be  presumed  in  a  doubtful 
case,  but  what  may  lawfully  be  done.  Nor  is  it  any  more 
to  the  purpose  to  object  to  the  inconveniences,  which 
may,  and  actually  do  arise  from  a  people's  thus  surrender- 
ing their  rights.  For  it  is  not  in  the  power  of  man  to 
devise  any  form  of  government  free  from  imperfections 
and  dangers.  As  a  dramatic  writer  says,  *  you  must  either 
take  these  advantages  with  those  imperfections,  or  resign 
your  pretensions  to  both." 

Now  as  there  are  different  ways  of  living,  some  of  a 
worse,  and  some  of  a  better  kind,  left  to  the  choice  of 
every  individual;  so  a  nation,  "under  certain  circum- 
stances, WHEN  for  instance,  the  succession  to  the  throne 
is  extinct,  or  the  throne  has  by  any  other  means  become 
vacant,"  may  chuse  what  form  of  government  she  pleases. 
Nor  is  this  right  to  be  measured  by  the  excellence  of  this 
or  that  form  of  government,  on  which  there  may  be  varie- 
ties of  opinion,  but  by  the  will  of  the  people. 

There  may  be  many  reasons  indeed  why  a  people  may 
entirely  relinquish  their  rights,  and  surrender  them  to 
another :  for  instance,  they  may  have  no  other  means  of 
securing  themselves  from  the  danger  of  immediate  de- 
struction, or  under  the  pressure  of  famine  it  may  be  the 
only  way,  through  which  they  can  procure  support.  For 
if  the  Campanians,  formerly,  when  reduced  by  necessity 
surrendered  themselves  to  the  Roman  people  in  the  fol- 
lowing terms :  — "  Senators  of  Rome,  we  consign  to  your 
dominion  the  people  of  Campania,  and  the  city  of  Capua, 


64  HUGO   GROTIUS 

our  lands,  our  temples,  and  all  things  both  divine  and 
human,*  and  if  another  people  as  Appian  relates,  offered 
to  submit  to  the  Romans,  and  were  refused,  what  is  there 
to  prevent  any  nation  from  submitting  in  the  same  man- 
ner to  one  powerful  sovereign  ?  It  may  also  happen  that 
a  master  of  a  family,  having  large  possessions,  will  suffer 
no  one  to  reside  upon  them  on  any  other  terms,  or  an 
owner,  having  many  slaves,  may  give  them  their  liberty 
upon  condition  of  their  doing  certain  services,  and  paying 
certain  rents ;  of  which  examples  may  be  produced.  Thus 
Tacitus,  speaking  of  the  German  slaves,  says,  <(  Each  has 
his  own  separate  habitation,  and  his  own  household  to 
govern.  The  master  considers  him  as  a  tenant,  bound  to 
pay  a  certain  rent  in  corn,  cattle,  and  wearing  apparel. 
And  this  is  the  utmost  extent  of  his  servitude." 

Aristotle,  in  describing  the  requisites,  which  fit  men 
for  servitude,  says,  that  *  those  men,  whose  powers  are 
chiefly  confined  to  the  body,  and  whose  principal  excel- 
lence consists  in  affording  bodily  service,  are  naturally 
slaves,  because  it  is  their  interest  to  be  so. >}  In  the  same 
manner  some  nations  are  of  such  a  disposition  that  they 
are  more  calculated  to  obey  than  to  govern,  which  seems 
to  have  been  the  opinion  which  the  Cappadocians  held  of 
themselves,  who  when  the  Romans  offered  them  a  popu- 
lar government,  refused  to  accept  it,  because  the  nation 
they  said  could  not  exist  in  safety  without  a  king.  Thus 
Philostratus  in  the  life  of  Apollonius,  says,  that  it  was 
foolish  to  offer  liberty  to  the  Thracians,  the  Mysians,  and 
the  Getae,  which  they  were  not  capable  of  enjoying.  The 
example  of  nations,  who  have  for  many  ages  lived  happily 
under  a  kingly  government,  has  induced  many  to  give 
the  preference  to  that  form.  Livy  says,  that  the  cities 
under  Eumenes  would  not  have  changed  their  condition 
for  that  of  any  free  state  whatsoever.  And  sometimes  a 
state  is  so  situated,  that  it  seems  impossible  it  can  pre- 
serve its  peace  and  existence,  without  submitting  to  the 
absolute  government  of  a  single  person,  which  many  wise 
men  thought  to  be  the  case  with  the  Roman  Republic  in 
the  time  of  Augustus  Caesar.  From  these,  and  causes 
like  these  it  not  only  may,  but  generally  does  happen, 
that  men,  as  Cicero  observes  in  the  second  book  of  his 
offices,  willingly  submit  to  the  supreme  authority  of 
another. 

Now  as  property  may  be  acquired  by  what  has  been 
already  styled  just  war,  by  the  same  means  the  rights  of 


THE   RIGHTS   OF   WAR  AND   PEACE  65 

sovereignty  may  be  acquired.  Nor  is  the  term  sovereignty 
here  meant  to  be  applied  to  monarchy  alone,  but  to  gov- 
ernment by  nobles,  from  any  share  in  which  the  people 
are  excluded.  For  there  never  was  any  government  so 
purely  popular,  as  not  to  require  the  exclusion  of  the 
poor,  of  strangers,  women,  and  minors  from  the  public 
councils.  Some  states  have  other  nations  under  them,  no 
less  dependent  upon  their  will,  than  subjects  upon  that 
of  their  sovereign  princes.  From  whence  arose  that  ques- 
tion, Are  the  Collatine  people  in  their  own  power  ?  And 
the  Campanians,  when  they  submitted  to  the  Romans,  are 
said  to  have  passed  under  a  foreign  dominion.  In  the 
same  manner  Acarnania  and  Amphilochia  are  said  to  have 
been  under  the  dominion  of  the  Aetolians;  Peraea  and 
Caunus  under  that  of  the  Rhodians ;  and  Pydna  was  ceded 
by  Philip  to  the  Olynthians.  And  those  towns,  that  had 
been  under  the  Spartans,  when  they  were  delivered  from 
their  dominion,  received  the  name  of  the  free  Laconians. 
The  city  of  Cotyora  is  said  by  Xenophon  to  have  belonged 
to  the  people  of  Sinope.  Nice  in  Italy,  according  to 
Strabo,  was  adjudged  to  the  people  of  Marseilles;  and  the 
island  of  Pithecusa  to  the  Neapolitans.  We  find  in  Fron- 
tinus,  that  the  towns  of  Calati  and  Caudium  with  their 
territories  were  adjudged,  the  6ne  to  the  colony  of  Capua, 
and  the  other  to  that  of  Beneventum.  Otho,  as  Tacitus 
relates,  gave  the  cities  of  the  Moors  to  the  Province  of 
Baetia.  None  of  these  instances,  any  more  than  the 
cessions  of  other  conquered  countries  could  be  admitted, 
if  it  were  a  received  rule  that  the  rights  of  sovereigns 
are  under  the  controul  and  direction  of  subjects. 

Now  it  is  plain  both  from  sacred  and  profane  history, 
that  there  are  kings,  who  are  not  subject  to  the  controul 
of  the  people  in  their  collective  body;  God  addressing 
the  people  of  Israel,  says,  if  thou  shalt  say,  *  I  will 
place  a  king  over  me » ;  and  to  Samuel  «  Shew  them  the 
manner  of  the  king,  who  shall  reign  over  them. w  Hence 
the  King  is  said  to  be  anointed  over  the  people,  over 
the  inheritance  of  the  Lord,  over  Israel.  Solomon  is 
styled  King  over  all  Israel.  Thus  David  gives  thanks  to 
God,  for  subduing  the  people  under  him.  And  Christ 
says,  "the  Kings  of  the  nations  bear  rule  over  them." 
There  is  a  well  known  passage  in  Horace,  n  Powerful 
sovereigns  reign  over  their  own  subjects,  and  the  supreme 
being  over  sovereigns  themselves. "  Seneca  thus  describes 
the  three  forms  of  government,  (<  Sometimes  the  supreme 
5 


66  HUGO   GROTIUS 

power  is  lodged  in  the  people,  sometimes  in  a  senate 
composed  of  the  leading  men  of  the  state,  sometimes 
this  power  of  the  people,  and  dominion  over  the  people 
themselves  is  vested  in  a  single  person.*  Of  the  last 
description  are  those,  who,  as  Plutarch  says,  exercise 
authority  not  according  to  the  laws,  but  over  the  laws. 
And  in  Herodutus,  Otanes  describes  a  monarch  as  one 
whose  acts  are  not  subject  to  controul.  Dion  Prusaeensis 
also  and  Pausanias  define  a  monarchy  in  the  same 
terms. 

Aristotle  says  there  are  some  kings,  who  have  the 
same  right,  which  the  nation  elsewhere  possesses  over 
persons  and  property.  Thus  when  the  Roman  Princes 
began  to  exercise  regal  power,  the  people  it  was  said 
had  transferred  all  their  own  personal  sovereignty  to 
them,  which  gave  rise  to  the  saying  of  Marcus  Antoninus 
the  Philosopher,  that  no  one  but  God  alone  can  be  judge 
of  the  Prince.  Dion.  L.  liii.  speaking  of  such  a  prince, 
says,  <(he  is  perfectly  master  of  his  own  actions,  to  do 
whatever  he  pleases,  and  cannot  be  obliged  to  do  any 
thing  against  his  will."  Such  anciently  was  the  power 
of  the  Inachidae  established  at  Argos  in  Greece.  For  in 
the  Greek  Tragedy  of  the  Suppliants,  Aeschylus  has 
introduced  the  people  thus  addressing  the  King :  (<  You 
are  the  state,  you  the  people;  you  the  court  from 
which  there  is  no  appeal,  you  preside  over  the  altars, 
and  regulate  all  affairs  by  your  supreme  will."  King 
Theseus  himself  in  Euripides  speaks  in  very  different 
terms  of  the  Athenian  Republic;  (<The  city  is  not  gov- 
erned by  one  man,  but  in  a  popular  form,  by  an  annual 
succession  of  magistrates. w  For  according  to  Plutarch's 
explanation,  Theseus  was  the  general  in  war,  and  the 
guardian  of  the  laws ;  but  in  other  respects  nothing  more 
than  a  citizen.  So  that  they  who  are  limited  by  popular 
controul  are  improperly  called  kings.  Thus  after  the 
time  of  Lycurgus,  and  more  particularly  after  the  insti- 
tution of  the  Ephori,  the  Kings  of  the  Lacedaemonians 
are  said  by  Polybius,  Plutarch,  and  Cornelius  Nepos,  to 
have  been  Kings  more  in  name  than  in  reality.  An  ex- 
ample which  was  followed  by  the  rest  of  Greece.  Thus 
Pausanias  says  of  the  Argives  to  the  Corinthians,  "The 
Argives  from  their  love  of  equality  have  reduced  their 
kingly  power  very  low;  so  that  they  have  left  the  pos- 
terity of  Cisus  nothing  more  than  the  shadow  of  Kings. w 
Aristotle  denies  such  to  be  proper  forms  of  government, 


THE   RIGHTS   OF   WAR   AND   PEACE  67 

because  they  constitute  only  a  part  of  an  Aristocracy  or 
Democracy. 

Examples  also  may  be  found  of  nations,  who  have  not 
been  under  a  perpetual  regal  form,  but  only  for  a  time 
under  a  government  exempt  from  popular  controul.  Such 
was  the  power  of  the  Amimonians  among  the  Cnidians, 
and  of  the  Dictators  in  the  early  periods  of  the  Roman 
history,  when  there  was  no  appeal  to  the  people,  from 
whence  Livy  says,  the  will  of  the  Dictator  was  observed 
as  a  law.  Indeed  they  found  this  submission  the  only 
remedy  against  imminent  danger,  and  in  the  words  of 
Cicero,  the  Dictatorship  possessed  all  the  strength  of  royal 
power. 

It  will  not  be  difficult  to  refute  the  arguments  brought 
in  favour  of  the  contrary  opinion.  For  in  the  first  place 
the  assertion  that  the  constituent  always  retains  a  con- 
troul over  the  sovereign  power,  which  he  has  contributed 
to  establish,  is  only  true  in  those  cases  where  the  con- 
tinuance and  existence  of  that  power  depends  upon  the 
will  and  pleasure  of  the  constituent:  but  not  in  cases 
where  the  power,  though  it  might  derive  its  origin  from 
that  constituent,  becomes  a  necessary  and  fundamental 
part  of  the  established  law.  Of  this  nature  is  that  author- 
ity to  which  a  woman  submits  when  she  gives  herself  to  a 
husband.  Valentinian  the  Emperor,  when  the  soldiers 
who  had  raised  him  to  the  throne,  made  a  demand  of 
which  he  did  not  approve,  replied;  "Soldiers,  your  elec- 
tion of  me  for  your  emperor  was  your  own  voluntary 
choice;  but  since  you  have  elected  me,  it  depends  upon 
my  pleasure  to  grant  your  request.  It  becomes  you  to 
obey  as  subjects,  and  me  to  consider  what  is  proper  to 
be  done." 

Nor  is  the  assumption  true,  that  all  kings  are  made  by 
the  people,  as  may  be  plainly  seen  from  the  instances 
adduced  above,  of  an  owner  admitting  strangers  to  re- 
side upon  his  demesnes  on  condition  of  their  obedience, 
and  of  nations  submitting  by  right  of  conquest.  An- 
other argument  is  derived  from  a  saying  of  the  Philoso- 
phers, that  all  power  is  conferred  for  the  benefit  of  the 
governed  and  not  of  the  governing  party.  Hence  from 
the  nobleness  of  the  end,  it  is  supposed  to  follow,  that 
subjects  have  a  superiority  over  the  sovereign.  But  it  is 
not  universally  true,  that  all  power  is  conferred  for  the 
benefit  of  the  party  governed.  For  some  powers  are 
conferred  for  the  sake  of  the  governor,  as  the  right  of  a 


68  HUGO  GROTIUS 

master  over  a  slave,  in  which  the  advantage  of  the  latter 
is  only  a  contingent  and  adventitious  circumstance.  In 
the  same  manner  the  gain  of  a  Physician  is  to  reward 
him  for  his  labour;  and  not  merely  to  promote  the  good 
of  his  art.  There  are  other  kinds  of  authority  estab- 
lished for  the  benefit  of  both  parties,  as  for  instance,  the 
authority  of  a  husband  over  his  wife.  Certain  govern- 
ments also,  as  those  which  are  gained  by  right  of  conquest, 
may  be  established  for  the  benefit  of  the  sovereign ;  and 
yet  convey  no  idea  of  tyranny,  a  word  which  in  its  origi- 
nal signification,  implied  nothing  of  arbitrary  power  or 
injustice,  but  only  the  government  or  authority  of  a 
Prince.  Again,  some  governments  may  be  formed  for 
the  advantage  both  of  subjects  and  sovereign,  as  when  a 
people,  unable  to  defend  themselves,  put  themselves  un- 
der the  protection  and  dominion  of  any  powerful  king. 
!Yet  it  is  not  to  be  denied,  but  that  in  most  governments 
the  good  of  the  subject  is  the  chief  object  which  is  re- 
garded: and  that  what  Cicero  has  said  after  Herodotus, 
and  Herodotus  after  Hesiod,  is  true,  that  Kings  were 
appointed  in  order  that  men  might  enjoy  complete  justice. 

Now  this  admission  by  no  means  goes  to  establish  the 
inference  that  kings  are  amenable  to  the  people.  For 
though  guardianships  were  invented  for  the  benefit  of 
wards,  yet  the  guardian  has  a  right  to  authority  over  the 
ward.  Nor,  though  a  guardian  may  for  mismanagement 
be  removed  from  his  trust,  does  it  follow  that  a  king  may 
for  the  same  reason  be  deposed.  The  cases  are  quite 
different,  the  guardian  has  a  superior  to  judge  him;  but 
in  governments,  as  there  must  be  some  dernier  resort,  it 
must  be  vested  either  in  an  individual,  or  in  some  public 
body,  whose  misconduct,  as  there  is  no  superior  tribunal 
before  which  they  can  be  called,  God  declares  that  he 
himself  will  judge.  He  either  punishes  their  offences, 
should  he  deem  it  necessary;  or  permits  them  for  the 
chastisement  of  his  people. 

This  is  well  expressed  by  Tacitus:  he  says,  (<you  should 
bear  with  the  rapacity  or  luxury  of  rulers,  as  you  would 
bear  with  drought,  or  excessive  rains,  or  any  other  calam- 
ities of  nature.  For  as  long  as  men  exist  there  will  be 
faults  and  imperfections;  but  these  are  not  of  uninter- 
rupted continuance,  and  they  are  often  repaired  by  the 
succession  of  better  times.*  And  Marcus  Aurelius  speak- 
mg  of  subordinate  magistrates,  said,  that  they  were  under 
the  controul  of  the  sovereign .-  but  that  the  sovereign  was 


THE   RIGHTS  OF  WAR  AND   PEACE  69 

amenable  to  God.  There  is  a  remarkable  passage  in 
Gregory  of  Tours,  where  that  Bishop  thus  addresses  the 
King  of  France,  (<  If  any  of  us,  Sir,  should  transgress  the 
bounds  of  justice,  he  may  be  punished  by  you.  But  if 
you  exceed  them,  who  can  call  you  to  account  ?  For  when 
we  address  you,  you  may  hear  us  if  you  please;  but  if 
you  will  not,  who  can  judge  you,  except  him,  who  has 
declared  himself  to  be  righteousness?*  Among  the  max- 
ims of  the  Essenes,  Porphyry  cites  a  passage,  that  <(no 
one  can  reign  without  the  special  appointment  of  divine 
providence. *  Irenaeus  has  expressed  this  well,  <(  Kings  are 
appointed  by  him  at  whose  command  men  are  created; 
and  their  appointment  is  suited  to  the  condition  of  those, 
whom  they  are  called  to  govern.*  There  is  the  same 
thought  in  the  Constitutions  of  Clement,  (<  You  shall  fear 
the  King,  for  he  is  of  the  Lord's  appointment.* 

Nor  is  it  an  objection  to  what  has  been  said,  that  some 
nations  have  been  punished  for  the  offences  of  their 
kings;  for  this  does  not  happen,  because  they  forbear  to 
restrain  their  kings,  but  because  they  seem  to  give,  at 
least  a  tacit  consent  to  their  vices,  or  perhaps,  without 
respect  to  this,  God  may  use  that  sovereign  power  which 
he  has  over  the  life  and  death  of  every  man  to  inflict 
a  punishment  upon  the  king  by  depriving  him  of  his 
subjects. 

IX.  There  are  some  who  frame  an  imaginary  kind  of 
mutual  subjection,  by  which  the  people  are  bound  to 
obey  the  king,  as  long  as  he  governs  well;  but  his 
government  is  subject  to  their  inspection  and  controul. 
If  they  were  to  say  that  his  duty  to  the  sovereign  does 
not  oblige  any  one  to  do  an  act  manifestly  unjust  and 
repugnant  to  the  law  of  God;  they  would  say  nothing 
but  what  is  true  and  universally  admitted,  but  this  by 
no  means  includes  a  right  to  any  controul  over  the 
Prince's  conduct  in  his  lawful  government.  But  if  any 
people  had  the  opportunity  of  dividing  the  sovereign 
power  with  the  king,  the  privileges  of  the  one,  and  the 
prerogatives  of  the  other  ought  to  be  defined  by  certain 
bounds,  which  might  easily  be  known,  according  to  the 
difference  of  places,  persons,  or  circumstances. 

Now  the  supposed  good  or  evil  of  any  act,  especially 
in  political  matters  which  admit  of  great  variety  of 
opinions  and  much  discussion,  is  not  a  sufficient  mark 
to  ascertain  these  bounds.  From  whence  the  greatest 
confusion  must  follow,  if  under  pretence  of  promoting 


70  HUGO   GROTIUS 

good  or  averting  evil  measures,  the  people  might 
struggle  for  the  Prince's  jurisdiction:  a  turbulent  state 
of  affairs,  which  no  sober  minded  people  ever  wished  to 
experience. 

X.  After  refuting  false  opinions,  it  remains  to  apply 
some  cautions,  which  may  point  out  the  way  to  ascertain 
correctly  the  person  to  whom  sovereign  power,  in  every 
state,  of  right  belongs.  The  first  caution  necessary  is  to 
avoid  being  deceived  by  ambiguous  terms,  or  appear- 
ances foreign  to  the  real  subject.  For  instance,  among 
the  Latins,  although  the  terms  PRINCIPALITY  and  KINGDOM 
are  generally  opposed  to  each  other,  when  Caesar  says, 
that  the  father  of  Vercingetorix  held  the  principality  of 
Gaul,  and  was  put  to  death  for  aiming  at  sovereign  power; 
and  when  Piso,  in  Tacitus  calls  Germanicus  the  son  of  a 
Roman  Prince,  not  of  a  Parthian  King;  and  when  Sue- 
tonius says,  that  Caligula  was  on  the  point  of  converting 
the  power  of  a  prince  into  that  of  a  king;  and  Velleius 
asserts  that  Maroboduus  not  contented  with  the  authority 
of  a  prince  over  voluntary  adherents  and  dependents, 
was  grasping  in  his  mind  at  regal  power;  yet  we  find 
these  terms  though  in  reality  very  distinct  were  often 
confounded.  For  the  Lacedaemonian  chiefs,  the  descend- 
ants of  Hercules,  though  subject  to  the  controul  of  the 
Ephori,  were  nevertheless  called  kings :  and  Tacitus  says, 
that  among  the  ancient  Germans  there  were  kings,  who 
governed  more  by  the  influence  of  persuasion  than  by  the 
authority  of  power.  Livy  too,  speaking  of  king  Evander, 
describes  him  as  reigning  more  by  personal  authority 
than  by  his  regal  power;  and  Aristotle,  Polybius,  and 
Diodorus  give  the  names  of  Kings  to  the  Suffetes  or 
Judges  of  the  Carthaginians.  In  the  same  manner  Solinus 
also  calls  Hanno  King  of  the  Carthaginians.  Strabo 
speaks  of  Scepsis  in  Troas,  that  having  incorporated  the 
Milesians  into  the  state,  it  formed  itself  into  a  Democracy, 
leaving  the  descendants  of  the  ancient  kings  the  title,  and 
something  of  the  dignity  of  kings. 

On  the  other  hand,  the  Roman  emperors,  after  they 
had  exercised  openly,  and  without  any  disguise,  a  most 
absolute  monarchical  power,  were  notwithstanding  called 
Princes.  And  in  some  popular  states  the  chief  magis- 
trates are  graced  with  ensigns  of  royalty. 

Again  the  states  general,  that  is  the  convention  of 
those  who  represent  the  people,  divided  into  classes  ac- 
cording to  Gunther,  consist  of  three  orders,  which  are 


THE   RIGHTS   OF   WAR  AND   PEACE  71 

the  Prelates,  the  Nobles,  and  Deputies  of  large  towns. 
In  some  places,  they  serve  as  a  greater  council  to  the 
king,  to  communicate  to  him  the  complaints  of  his  people, 
which  might  otherwise  be  kept  from  his  ears;  leaving 
him  at  the  same  time  full  liberty  to  exercise  his  own 
discretion  upon  the  matters  so  communicated.  But  in 
other  places  they  form  a  body  wfth  power  to  inquire 
into  the  prince's  measures,  and  to  make  laws. 

Many  think  that  in  order  to  know  whether  a  prince  be 
sovereign  or  not,  it  is  proper  to  inquire  whether  his  title 
to  the  crown  is  by  election  or  inheritance.  For  they 
maintain  that  hereditary  monarchies  alone  are  sovereign. 
But  this  cannot  be  received  as  a  general  criterion.  For 
sovereignty  consists  not  merely  in  the  TITLE  to  the 
throne,  which  only  implies  that  the  successor  has  a  right 
to  all  the  privileges  and  prerogatives  that  his  ancestors 
enjoyed,  but  it  by  no  means  affects  the  nature  or  extent 
of  his  powers.  For  right  of  election  conveys  all  the 
powers,  which  the  first  election  or  appointment  conferred. 
Among  the  Lacedaemonians  the  crown  was  hereditary 
even  after  the  institution  of  the  Ephori.  And  Aristotle 
describing  the  chief  power  of  such  a  state,  says,  (<  Of 
these  kingdoms,  some  are  hereditary,  and  others  elective." 
In  the  heroic  times  most  of  the  kingdoms  in  Greece  were 
of  this  description,  as  we  are  informed  by  Thucydides. 
The  Roman  empire,  on  the  contrary,  even  after  the  power 
of  the  Senate  and  people  was  abolished,  was  given  or 
confirmed  by  election. 

XI.  Another  caution  is  necessary.  For  to  inquire  into 
the  matter  of  a  right  is  not  the  same  thing  as  to  examine 
the  nature  of  its  tenure.  A  distinction  which  takes  place 
not  only  in  corporeal  but  in  incorporeal  possessions.  For 
a  right  of  passage  or  carriage  through  a  ground  is  no  less 
a  right  than  that  which  entitles  a  man  to  the  possession 
of  the  land  itself.  Now  some  hold  these  privileges  by  a 
full  right  of  property,  some  by  an  usufructuary,  and 
others  by  a  temporary  right.  Thus  the  Roman  Dictator 
had  sovereign  power  by  a  temporary  right.  In  the  same 
manner  kings,  both  those  who  are  the  first  of  their  line 
elected  to  the  throne,  and  those  who  succeed  them  in  the 
lawful  order,  enjoy  an  usufructuary  right,  or  inalienable 
right.  But  some  sovereigns  hold  their  power  by  a 
plenary  right  of  property;  when  for  instance  it  comes 
into  their  possession  by  the  right  of  lawful  conquest,  or 
when  a  people,  to  avoid  greater  evils,  make  an  unquali- 


72  HUGO  GROTIUS 

fied  surrender  of  themselves  and  their  rights   into   their 
hands. 

The  opinion  of  those  can  never  be  assented  to,  who  say 
that  the  power  of  the  Dictator  was  not  sovereign,  because 
it  was  not  permanent.  For  in  the  moral  world  the  nature 
of  things  is  known  from  their  operations.  The  powers 
attended  with  equal  effects  are  entitled  to  equal  names. 
Now  the  Dictator  for  the  time  being  performed  all  acts 
with  the  same  authority  as  the  most  absolute  sovereign; 
nor  could  any  other  power  annul  his  acts.  The  perma- 
nence therefore  of  uncertainty  alters  not  the  nature  of  a 
right,  although  it  would  undoubtedly  abridge  its  dignity, 
and  diminish  its  splendour.* 

•The  translation  proceeds  from  hence  to  the  second  book  of  the 
original,  which  seems  to  follow  this  part  without  any  material  break 
in  the  chain  of  argument:  the  intermediate  sections  relating  to  in- 
stances in  the  Roman  Republic,  which  do  not  directly  apply  to  the 
practice  of  modern  governments. —  TRANSLATOR. 


BOOK  II. 

CHAPTER   I. 

DEFENCE  OF  PERSON  AND  PROPERTY. 

Causes  of  War  —  Defence  of  person  and  property  —  What  are  called  justifi- 
able causes  of  war  —  Justifiable  causes  of  War  are  Defence,  recovery 
of  one's  property  or  debt,  or  the  punishment  of  offences  committed  — 
War  for  defence  of  life,  justifiable,  and  lawful  —  This  kind  of  war  law- 
ful against  an  aggressor  only  —  The  danger  must  be  present  and  real, 
not  an  imaginary  danger  —  Lawful  to  kill  any  one  attempting  to  maim 
one's  person,  or  violate  one's  chastity  —  Occasions  where  this  right 
may  be  lawfully  waved  —  This  right  to  be  waved  particularly  with 
respect  to  the  person  of  the  Sovereign,  which  is  sacred  and  inviola- 
ble —  Homicide  in  defence  of  one's  property  allowed  by  the  law  of 
nature  —  How  far  homicide  is  permitted  by  the  law  of  Moses  —  Self- 
defence  in  public  war  —  Not  lawful  to  attack  any  power  solely  on 
account  of  its  increasing  greatness  —  The  hostile  measures  of  an  ag- 
gressor, not  to  be  justified  on  the  plea  of  self-defence. 

I.  THE  causes  of  war  by  which  are  meant  the  justifiable 
causes,  are  now  to  be  considered.  For  in  some  cases 
motives  of  interest  operate  distinctly  from  motives  of  jus- 
tice. Polybius  accurately  distinguishes  these  motives  from 
each  other,  and  from  the  beginning  of  the  war,  or  that 
which  gave  occasion  to  the  first  acts  of  hostility;  as  was 
the  case  when  Ascanius  wounded  the  stag,  which  gave 
rise  to  the  war  between  Turnus  and  Aeneas.  But  though 
there  is  an  actual  distinction  between  the  justifiable  causes, 
the  pretexts,  and  the  beginning  of  war;  yet  the  terms 
used  to  express  them  are  often  confounded.  For  what 
we  call  justifiable  causes,  Livy,  in  the  speech  which  he 
has  put  into  the  mouth  of  the  Rhodians,  calls  beginnings. 
The  Rhodian  deputies  said,  <(  You  Romans  profess  to  be- 
lieve that  your  wars  are  successful,  because  they  are  just  ; 
nor  do  you  boast  so  much  of  their  victorious  issue,  as  of 
the  just  principles,  upon  which  you  make  them.*  In 
which  sense  Aelian  styles  them  Apxasnoletjuuv  and  Diodorus 
Siculus,  in  speaking  of  the  war  of  the  Lacedaemonians 
against  the  Eleans  gives  them  the  name  of  npofaffet?  and 


(73) 


74  HUGO   GROTIUS 

The  principal  drift  of  our  argument  rests  upon  these 
justifiable  causes,  to  which  the  sentiment  of  Coriolanus 
in  Dionysius  of  Halicarnassus,  particularly  applies,  he 
says,  "in  the  first  place,  I  beseech  you  to  consider  how 
you  may  find  pious  and  just  pretexts  for  the  war. w  And 
Demosthenes  in  his  second  Olynthiac,  makes  a  similar 
observation,  "  I  think,  says  he,  that  as  in  a  ship,  or  house, 
or  any  other  fabric,  the  lowest  parts  ought  to  be  the 
strongest;  so  in  all  political  measures  the  motives  and 
pretexts  ought  to  be  laid  deeply  in  the  principles  of  truth 
and  justice. w  The  following  language  of  Dion  Cassius  is 
no  less  applicable  to  the  question.  "Justice  must  be 
made  the  principal  ground  of  our  actions.  For  with  such 
support  there  is  the  best  hope  of  success  to  our  arms. 
But  without  that,  any  point  which  may  be  gained  for  the 
moment  has  no  firm  ground  to  rest  upon."  To  which 
may  be  added,  the  words  of  Cicero,  who  maintains  those 
wars  to  be  unjust,  which  are  made  without  sufficient 
cause.  And  in  another  place,  he  reproves  Crassus  for 
having  intended  to  pass  the  Euphrates,  when  there  was 
no  cause  of  war.  Which  is  no  less  true  of  public  than 
of  private  wars.  Hence  come  the  complaints  of  Seneca, 
"Why  do  we  restrain  homicide,  and  the  murder  of  in- 
dividuals, but  glory  in  the  crime  of  slaughter,  which 
destroys  whole  nations  ?  Avarice  and  cruelty  know  not 
any  bounds.  By  decrees  of  the  Senate,  and  of  the  people 
cruel  acts  are  authorized,  and  measures,  which  are  pur- 
sued by  order  of  the  state,  are  forbidden  to  individuals. w 
Wars  indeed  undertaken  by  public  authority  are  attended 
with  certain  effects  of  right,  and  have  the  sanction  of 
opinion  in  their  favour.  But  they  are  not  the  less 
criminal,  when  made  without  just  cause.  For  which  rea- 
son Alexander  was  not  improperly  styled  a  robber  by  the 
Scythian  ambassadors,  as  may  be  seen  in  Quintus  Curtius. 
Seneca  and  Lucan  give  him  the  same  appellation;  the 
Indian  sages  call  him  a  madman ;  and  a  pirate  once  pre- 
sumed to  rank  him  with  his  own  class.  Justin  speaks  of 
Philip  in  the  same  terms,  who,  says  he,  in  deciding  a 
dispute  between  two  rival  kings,  stripped  both  of  their 
dominions  with  all  the  treachery  and  violence  of  a  rob- 
ber. Augustin  has  a  pertinent  remark  on  this  subject. 
He  says,  what  are  unjustly  acquired  dominions,  but  the 
spoils  of  robbery  ?  In  the  same  strain,  Lactantius  says, 
"Men,  captivated  with  the  appearances  of  vain  glory,  give 
the  names  of  virtues  to  their  crimes. w  Injury,  or  the 


THE  RIGHTS  OF  WAR  AND  PEACE       75 

prevention  of  injury  forms  the  only  justifiable  cause  of 
war.  "And,  in  the  language  of  the  same  Augustin,  all 
the  evil  consequences  of  war  are  to  be  laid  at  the  door 
of  the  aggressor.*  Thus  the  Roman  Herald  in  a  decla- 
ration of  war  makes  a  solemn  appeal  against  the  aggressor, 
as  having  violated  the  laws  of  nations,  and  refused  proper 
satisfaction. 

II.  The  grounds  of  war  are  as  numerous  as  those  of  ju- 
dicial actions.  For  where  the  power  of  law  ceases,  there 
war  begins.  Now  there  are  methods  in  law  to  prevent 
intended  injuries,  as  well  as  actions  for  those  actually 
committed.  For  CIVIL  INJURIES  various  methods  of  re- 
dress, or  prevention  are  appointed  by  the  law;  and  by 
the  same  power  securities  are  provided  to  prevent  the 
commission  of  crimes  and  misdemeanors.  In  civil  cases, 
the  party  aggrieved  may  recover  damages  for  the  injuries 
sustained;  and  in  crimes,  which  are  offences  against  the 
public,  the  aggressor  must  submit  to  actual  punishment. 
Plato,  in  his  ninth  book  on  laws,  very  properly  makes 
the  same  distinction,  as  Homer  had  done  before  him. 

Now  reparation  or  indemnity  relates  to  what  either 
does  or  did  belong  to  us;  which  gives  rise  to  real  and 
personal  actions.  These  ascertain  our  right  to  the  dam- 
ages, which  are  our  due,  either  from  an  agreement,  or 
from  an  injury  received.  A  right  which  is  termed  in 
law  a  right  by  contract,  or  injury.  Crimes,  which  are 
offences  against  society,  are  prosecuted  by  indictment, 
that  is  by  an  accusation  in  the  name  of  the  sovereign. 

The  justifiable  causes  generally  assigned  for  war  are 
three,  defence,  indemnity,  and  punishment,  all  which  are 
comprised  in  the  declaration  of  Camillus  against  the 
Gauls,  enumerating  all  things,  which  it  is  right  to  defend, 
to  recover,  and  the  encroachment  on  which  it  is  right  to 
punish. 

There  is  an  omission  in  this  enumeration,  unless  the 
word  recover  be  taken  in  its  most  extensive  sense.  For 
recovering  by  war  what  we  have  lost,  includes  indemnity 
for  the  past,  as  well  as  the  prosecution  of  our  claim  to 
a  debt.  Plato  has  not  omitted  to  notice  this  distinction, 
for  he  has  said,  <(  that  wars  are  made  to  punish  not  only  op- 
pression or  robbery,  but  also  fraud  and  deception. w  With 
whom  Seneca  agrees;  for  to  command  payment  of  what 
you  owe,  he  calls,  (<an  equitable  sentence,  stamped  with 
the  authority  of  the  law  of  nations."  Indeed  the  form 
which  was  prescribed  for  the  Roman  heralds  to  use  in 


76  HUGO   GROTIUS 

declarations  of  war,  bears  exactly  the  same  import.  For 
therein  the  aggressor  is  charged  with  having  neither 
given,  paid,  nor  done  what  was  due.  Sallust  in  one  of 
his  fragments,  has  made  a  Tribune,  in  his  harangue  to 
the  people,  say,  <(As  a  final  settlement  of  all  discussions, 
I  demand  restitution  according  to  the  law  of  nations." 

St.  Augustin,  in  defining  those  to  be  just  wars,  which 
are  made  to  avenge  injuries  has  taken  the  word  avenge 
in  a  general  sense  of  removing  and  preventing,  as  well 
as  punishing  aggressions.  This  appears  to  be  his  mean- 
ing from  the  following  sentence  of  the  passage,  in  which 
he  does  not  enumerate  the  particular  acts,  which  amount 
to  injury,  but  adds,  by  way  of  illustration,  that  <(  the  state 
or  nation,  which  has  neglected  to  punish  the  aggressions 
of  its  own  subjects,  or  to  make  reparation  for  the  losses 
occasioned  by  those  aggressions,  is  a  proper  object  of 
hostility  and  attack. "  Prompted  by  this  natural  knowledge 
of  right  and  wrong,  the  Indian  King,  as  we  are  informed 
by  Diodorus,  accused  Semiramis  of  having  commenced 
war  against  him  without  having  received  any  injury. 
Thus  the  Romans  expostulated  with  the  the  Senones, 
that  they  ought  not  to  attack  a  people  who  had  given 
them  no  provocation.  Aristotle  in  the  second  book  and 
second  chapter  of  his  Analytics,  says,  war  generally  is 
made  upon  those  who  have  first  done  an  injury.  Quintus 
Curtius  describes  the  Abian  Scythians,  as  the  best  ac- 
quainted with  the  principles  of  justice  of  any  of  the 
Barbarians.  For  they  declined  having  recourse  to  arms, 
unless  provoked  by  aggression.  A  just  cause  then  of  war 
is  an  injury,  which  though  not  actually  committed, 
threatens  our  persons  or  property  with  danger. 

III.  It  has  already  been  proved  that  when  our  lives 
are  threatened  with  immediate  danger,  it  is  lawful  to  kill 
the  aggressor,  if  the  danger  cannot  otherwise  be  avoided: 
an  instance,  as  it  has  been  shewn,  on  which  the  justice  of 
private  war  rests.  We  must  observe  that  this  kind  of 
defence  derives  its  origin  from  the  principle  of  self- 
preservation,  which  nature  has  given  to  every  living 
creature,  and  not  from  the  injustice  or  misconduct  of  the 
aggressor.  Wherefore  though  he  may  be  clear  of  guilt, 
as  for  instance  a  soldier  in  actual  service,  mistaking  my 
person  for  that  of  another,  or  a  madman  in  his  frenzy, 
or  a  man  walking  in  his  sleep,  none  of  these  cases  de- 
prive me  of  the  right  of  self-defence  against  those  per- 
sons. For  I  am  not  bound  to  submit  to  the  danger  or 


THE   RIGHTS  OF   WAR  AND   PEACE  77 

mischief   intended,    any  more   than  to  expose  myself   to 
the  attacks  of  a  wild  beast. 

IV.  It  admits  of  some   doubt,  whether   those,  who  un- 
intentionally obstruct  our  defence,  or   escape,  which   are 
necessary  to  our  preservation,  may  be   lawfully  maimed 
or  killed.     There  are  some,  even  Theologians,  who  think 
they  may.     And,  certainly  if  we   look  to  the   law  of  na- 
ture alone,  according  to  its  principles,  our  own  preserva- 
tion   should    have   much   more  weight    with  us,  than  the 
welfare  of   society.     But    the    law   of    charity,  especially 
the  evangelical  law,  which  has  put   our  neighbour  upon 
a  level  with  ourselves,  does  not  permit  it. 

Thomas  Aquinas,  if  taken  in  a  right  sense,  has  justly 
observed,  that  in  actual  self-defence  no  man  can  be  said 
to  be  purposely  killed.  Indeed,  it  may  some  times  hap- 
pen that  there  is  no  other  way  for  a  person  to  save  him- 
self, than  by  designedly  doing  an  act,  by  which  the 
death  of  an  aggressor  must  inevitably  ensue.  Yet  here 
the  death  of  any  one  was  not  the  primary  object  in- 
tended, but  employed  as  the  only  means  of  security, 
which  the  moment  supplied.  Still  it  is  better  for  the 
party  assaulted,  if  he  can  safely  do  it,  to  repel  or  disable 
the  aggressor  than  to  shed  his  blood. 

V.  The  danger  must  be    immediate,  which  is  one  nec- 
essary point.     Though   it  must  be   confessed,  that  when 
an  assailant  seizes  any  weapon  with  an  apparent  intention 
to  kill  me  I  have  a   right   to   anticipate  and  prevent  the  x 
danger.     For  in  the  moral  as  well  as  the  natural  system 
of  things,  there  is  no  point  without  some    breadth.     But 
they  are  themselves  much  mistaken,  and  mislead  others, 
who  maintain   that   any   degree   of   fear   ought   to   be    a 
ground  for  killing  another,  to   prevent  his   SUPPOSED   in- 
tention.    It  is  a  very  just  observation   made   by    Cicero 
in  his  first   book   of  Offices,    that  many  wrongs   proceed 
from  fear;  as  when  the  person,  who  intends  to  hurt  an-  \ 
other,  apprehends  some  danger  to  himself  unless  he  took 
that  method.    Clearchus,  in  Xenophon,  says,  I  have  known 
some  men,    who    partly   through    misrepresentation,  and 
partly  through  suspicion,  dreading  one  another,  in  order 
to  prevent  the  supposed  intentions   of  their   adversaries, 
have  committed  the  most  enormous  cruelties  against  those 
who  neither  designed,  nor  wished  them  any  harm. 

Cato  in  his  speech  for  the  Rhodians,  says,  w  Are  we  to 
prevent  them  by  doing  first,  what  we  say  they  intended 
to  do  to  us  ? "  On  this  subject  there  is  a  remarkable 


78  HUGO   GROTIUS 

passage  in  Aulus  Gellius,  <(  When  a  Gladiator  prepares  to 
enter  the  lists  for  combat,  such  is  his  lot  that  he  must 
either  kill  his  adversary,  or  be  killed  himself.  But  the 
life  of  man  is  not  circumscribed  by  the  hard  terms  of 
such  an  over-ruling  necessity,  as  to  oblige  him  to  do  an 
injury  to  prevent  him  from  receiving  one.*  Quintilian 
has  quoted  a  passage  from  Cicero,  wherein  the  orator 
asks,  (<  Whoever  made  such  a  decision,  or  to  whom  could 
such  a  point  be  yielded  without  the  most  imminent 
danger,  that  you  have  a  right  to  kill  the  person,  by 
whom  you  say,  you  fear  that  you  shall  afterwards  be 
killed  yourself  ? *  To  which  this  passage  of  Euripides, 
may  be  applied,  <(  If  your  husband,  as  you  say,  intended 
to  have  killed  you,  you  ought  to  have  waited,  till  he 
actually  did  make  the  attempt.*  Conformably  to  which 
Thucydides,  in  the  first  book  of  his  history,  has  expressed 
himself  in  the  following  terms,  <(  The  issue  of  war  is  un- 
certain, nor  ought  we  to  be  so  far  transported  by  our 
fears,  as  to  engage  in  immediate  and  open  hostilities.* 
The  same  writer  too  in  his  luminous  description  of  the 
dangerous  factions,  that  had  arisen  in  the  Grecian  states, 
condemns  the  approbation  bestowed  on  the  person,  that 
injured  or  destroyed  another  from  whom  he  himself  ap- 
prehended injury  or  destruction.* 

Livy  says,  "Men,  to  guard  against  their  alarms,  make 
themselves  objects  of  terror;  averting  the  danger  from 
their  own  heads,  by  imposing  upon  others  the  necessity 
of  either  doing  or  suffering  the  evil  which  they  them- 
selves fear.*  Vibius  asked  a  person,  that  appeared 
armed  in  the  forum,  (<  Who  gave  you  permission  to  shew 
your  fear  in  this  manner  ?  *  A  question  not  inapplicable 
to  the  present  subject,  and  much  commended  by  Quin- 
tilian. Livia  also  in  Dion  says,  that  great  infamy  re- 
dounds to  those,  who  by  anticipation  perpetrate  the 
criminal  act,  which  they  fear. 

Now  if  any  one  intend  no  immediate  violence,  but  is 
found  to  have  formed  a  conspiracy  to  destroy  me  by 
assassination,  or  poison,  or  by  false  accusation,  perjury, 
or  suborned  witnesses,  I  have  no  right  to  kill  him.  For 
my  knowledge  of  the  danger  may  prevent  it.  Or  even 
if  it  were  evident  that  I  could  not  avoid  the  danger 
without  killing  him;  this  would  not  establish  my  right 
to  do  so.  For  there  is  every  presumption  that  my  know- 
ing it  will  lead  me  to  apply  for  the  legal  remedies  of 
prevention. 


THE   RIGHTS   OF   WAR  AND   PEACE  79 

VI.  and  VII.  The  next  thing  to  be  considered  is,  what 
must  be  said  upon  the  mutilation  of  a  limb.  Now,  as 
the  loss  of  a  limb,  especially  that  of  a  principal  limb  in 
the  body,  is  a  grievous  detriment,  and  nearly  equal  to  the 
loss  of  life,  to  which  may  be  added  the  probability  of 
death  ensuing  from  such  a  calamity;  the  lawfulness  of 
killing  any  one,  who  makes  such  an  attempt,  if  the  dan- 
ger cannot  otherwise  be  avoided,  scarce  admits  of  a 
doubt.  Neither  is  there  any  more  difficulty  in  allowing 
the  same  right  for  the  personal  defence  of  chastity,  the 
preservation  of  which,  both  in  the  common  estimation  of 
men,  and  by  the  divine  law,  is  deemed  of  equal  value 
with  life  itself.  We  have  an  example  of  this  in  Cicero, 
Quintilian,  and  Plutarch,  in  the  person  of  one  of  Marius's 
tribunes,  who  was  killed  by  a  soldier.  Among  the  actions 
of  women,  who  have  defended  themselves.  Heliodorus 
records  that  of  Heraclea,  which  he  calls  a  just  defence  of 
her  injured  honour. 

VIII.  Though  some,  as  it  has  been  already  said,  admit 
the  lawfulness  of  killing  the  person,  who  attempts  with 
open    violence    to    destroy   one's    life,    yet   they   deem   it 
more  commendable  to  spare  the  life  of  another,  even  at 
the  hazard  of  one's  own.     Yet  to  persons,  in  whose  pres- 
ervation the   public  interest  is  involved,  they  will   grant 
an  exemption  from  this  rule   of   forbearance.     Indeed  it 
seems  unsafe  to  impose  upon   ANY,  whose   lives  are    of 
importance  to  others,  a  rule  of  forebearance  so  contrary 
to  all  the  principles  of  all  law.     This  exemption  therefore 
must  be   allowed   to  all   vested    with   any   public   office, 
which  makes  them  responsible  for  the    safety   of  others; 
as  the  generals  who  conduct  armies,  or  the  rulers  of  the 
state,  and  many  others  in   similar   situations;   to  whom 
may  be  applied  the  lines  of  Lucan  — (<  When  the  lives  and 
safety    of    so    many  nations     depend   upon     yours,    and 
so    great    a    portion    of    the    world    has  chosen  you  for 
its  head;   it    is    cruelty    to    expose    yourself  wilfully   to 
death.8 

IX.  On  the  other  hand  it  may  happen,  that  the  aggres- 
sor may  be  one  whose  person  is  rendered  sacred  and  in- 
violable by  all  divine,  human,  and  natural  laws ;  which  is 
the    case  with  respect   to    the    person  of  the  Sovereign. 
For  the  law  of  nature  regards  not  only  the  principles  of 
STRICT  JUSTICE,  but  comprises  other  virtues  also,   as  tem- 
perance, fortitude,  and  discretion,  making  the  observance 
of  them  in  certain  cases,  binding  as  well  as  honourable. 


8o  HUGO  GROTIUS 

To  observe  these  we  are  bound  also  by  the  law  of 
charity. 

Nor  is  the  truth  of  this  argument  at  all  weakened  by 
what  Vasquez  has  advanced,  who  maintains  that  the  Sov- 
ereign who  attempts  the  life  of  an  individual  loses,  in 
reality,  the  character  of  Sovereign:  a  doctrine  fraught 
with  equal  absurdity  and  danger.  For  sovereignty  can- 
not any  more  than  property  be  forfeited  by  any  particular 
act  of  delinquency ;  unless  it  has  been  previously  and  ex- 
pressly so  enacted  by  the  fundamental  laws  of  the  state. 
For  such  a  rule  of  forfeiture,  which  would  be  productive 
of  universal  anarchy  and  confusion,  never  has  been,  nor 
ever  will  be  established  among  any  civilized  people.  For 
the  maxim,  (<  that  all  government  is  framed  for  the  bene- 
fit of  the  subject  and  not  of  the  Sovereign,"  which 
Vasquez  and  many  other  writers  lay  down  as  a  funda- 
mental law,  though  it  may  be  generally  true  in  theory,  is 
by  no  means  applicable  to  the  question.  For  a  thing 
loses  not  its  existence,  by  losing  some  part  of  its  utility. 
Nor  is  there  sufficient  consistency  in  his  observation,  that 
every  individual  desires  the  safety  of  the  commonwealth 
on  his  own  account,  and  therefore  every  one  ought  to  pre- 
fer his  own  safety  to  that  of  the  whole  state.  For  we  wish 
for  the  public  welfare  not  on  our  own  account  alone,  but 
also  for  the  sake  of  others. 

The  opinion  of  those  who  think  that  friendship  arises 
from  necessity  alone,  is  rejected,  as  false,  by  the  more 
sound  Philosophers ;  as  we  feel  a  spontaneous  and  natural 
inclination  towards  friendly  intercourse.  Charity  indeed 
often  persuades,  and  in  some  instances  commands  us  to 
prefer  the  good  of  many  to  our  own  single  advantage. 
To  which  the  following  passage  from  Seneca  is  very  ap- 
plicable. «It  is  not  surprising  that  princes,  and  kings, 
or  whatever  name  the  guardians  of  the  public  welfare 
may  bear,  shduld  be  loved  with  a  veneration  and  affection, 
far  beyond  those  of  private  friendship.  For  all  men  of 
sober  judgment,  and  enlarged  information  "deem  the 
public  interest  of  higher  moment  than  their  own.  Their 
attachment  therefore  must  be  warmest  to  the  person  on 
whom  the  well  being  and  prosperity  of  the  state  depends. w 
And  to  the  same  effect,  St.  Ambrose  in  his  third  book 
of  Offices,  says,  "every  man  feels  a  greater  delight  in  avert- 
ing public  than  private  danger."  Seneca,  the  writer 
already  quoted,  produces  two  instances,  the  one  of  Callis- 
tratus  at  Athens,  and  the  other  of  Rutilius  at  Rome, 


THE   RIGHTS   OF  WAR  AND   PEACE  81 

who  refused  to  be  restored  from  banishment  thinking  it 
better  for  two  individuals  to  suffer  hardship,  than  for 
the  public  to  be  plunged  into  calamities. 

XI.  *  The    next    object    to    be    considered,    relates  to 
injuries  affecting  our  property.     In  strict  justice,  it  can- 
not  be    denied    that  we  have  a  right  to  kill  a  robber,  if 
such  a  step  is  inevitably  necessary  to  the  preservation  of 
our   property.     For    the  difference   between  the  value  of 
life  and  property  is   overbalanced   by  the  horror  which  a 
robber  excites,  and  by'the   favourable   inclination  felt  by 
all  men  towards  the  injured  and  innocent.     From  whence 
it  follows,  that  regarding  that  right  alone,  a  robber  may 
be  wounded  or  killed  in  his  flight  with  the  property,  if  it 
cannot    otherwise    be    recovered.       Demosthenes    in   his 
speech   against   Aristocrates,    exclaims,     (<  By   all   that    is 
sacred,    is  it  not  a  dreadful  and  open   violation   of  law, 
not  only  of  written  law,  but  of  that  law  which  is  the  un- 
written rule  of  all  men,  to  be  debarred  from  the  right  of 
using   force    against   the    robber   as   well   as   against  the 
enemy;   who   is   plundering   your   property?*     Nor   is   it 
forbidden  by  the  precepts  of  charity,  apart  from  all  con- 
sideration   of   divine   and  human   law,    unless   where   the 
property  is  of  little  value,  and  beneath  notice ;  an  excep- 
tion, which  some  writers  have  very  properly  added. 

XII.  The  sense  of  the  Jewish  law  on  this  point  is  now 
to    be    considered.      The    old    law    of    Solon,    to    which 
Demosthenes,  in  his  speech   against  Timocrates,  appeals, 
agrees  with  it.     From  hence  the  substance  of  the  TWELVE 
TABLES,  and    Plato's  maxim  in   his   ninth   book   of  laws 
were  taken.     For  they  all  agree   in  making  a  distinction 
between  a  thief  who  steals  by  day,  and  the  robber,  who 
commits  the  act  by   night;  though   they  differ  about  the 
REASON  of  this   distinction.     Some   think   this    distinction 
arises     from    the     difficulty    of     discerning     by     night, 
whether   an   aggressor  comes  with   an  intent   to  murder 
or   steal,    and  therefore   he    ought  to  be    treated   as   an 
assassin.     Others  think  the    distinction  is   made,  because 
as  it  is   difficult  to   know  the   person  of   the  thief,  there 
is  less  probability  of   recovering   the  goods.     In  neither 
case    do  the   framers   of  laws   seem   to  have   considered 
the  question  in  its  proper  light.     Their  evident  intention 
is  to  prohibit  the  killing  of   any  one,  merely  on  account 

*  The  tenth  section  is  omitted  in  the  translation;  as  the  subject 
of  Christian  forbearance  of  which  it  treats,  has  already  been  discussed 
in  the  preceeding  book. — TRANSLATOR. 
6 


82  HUGO   GROTIUS 

of  our  property;  which  would  happen,  for  instance,  by 
killing  a  thief  in  his  flight  in  order  to  recover  the  goods 
he  had  stolen.  But  if  our  own  lives  are  endangered, 
then  we  are  allowed  to  avert  the  danger,  even  at  the 
hazard  of  another's  life.  Nor  is  our  having  run  into  the 
danger  any  objection;  provided  it  was  done  to  preserve 
or  to  recover  our  goods,  or  to  take  the  thief.  For  no 
imputation  of  guilt  can  attach  to  us  in  any  of  these 
cases,  while  we  are  employed  in  doing  a  lawful  act,  nor 
can  it  be  said  that  we  are  doing  wrong  to  another  by 
exercising  our  own  right. 

The  difference  therefore  made  between  a  thief  in  the 
night  and  a  thief  in  the  day,  arises  from  the  difficulty 
of  procuring  sufficient  evidence  of  the  fact.  So  that  if 
a  thief  is  found  killed,  the  person  who  says,  that  he  was 
found  by  him  with  a  destructive  weapon,  and  killed  by 
him  in  his  own  defence,  will  easily  gain  belief.  For  the 
Jewish  law  supposes  this,  when  it  treats  of  a  thief  in 
the  act  of  piercing,  or,  as  some  translate  it,  with  a 
stabbing  instrument.  This  interpretation  accords  with 
the  law  of  the  twelve  tables,  which  forbids  any  one  to 
kill  a  thief  in  the  day  time,  except  he  defend  himself 
with  a  weapon.  The  presumption  therefore  against  a 
thief  in  the  night  is  that  he  defended  himself  in  such  a 
manner.  Now  the  term  weapon  comprehends  not  only 
an  instrument  of  iron,  but  as  Caius  interprets  this  law, 
a  club,  or  a  stone.  Ulpian  on  the  other  hand,  speaking 
of  a  thief  taken  in  the  night,  says  that  the  person  who 
kills  him  will  incur  no  guilt,  provided  that  in  saving 
his  property  he  could  not  spare  his  life,  without  en- 
dangering his  own.  There  is  a  presumption,  as  it  has 
been  already  observed,  in  favour  of  the  person  who  has 
killed  a  thief  taken  in  the  night.  But  if  there  be  evi- 
dence to  prove,  that  the  life  of  the  person  who  killed 
the  thief  was  in  no  danger;  then  the  presumption  in  his 
favour  fails,  and  the  act  amounts  to  murder. 

The  law  of  the  twelve  tables  indeed  required,  that  the 
person  who  took  a  thief  either  in  the  day  time,  or  in  the 
night,  should  make  a  noise  that,  if  possible,  the  magis- 
trates or  neighbours  might  assemble  to  assist  him  and 
give  evidence.  But  as  such  a  concourse  could  more  easily 
be  assembled  in  the  day  time  than  in  the  night,  as  Ulpian 
observes  upon  the  passage  before  quoted  from  Demos- 
thenes, the  affirmation  of  a  person  declaring  the  danger 
he  was  in  during  the  night  is  more  readily  believed.  To 


THE   RIGHTS   OF   WAR  AND   PEACE  83 

which  an  additional  observation  may  be  made,  that,  even 
under  equal  circumstances,  the  danger  which  happens  by 
night  can  be  less  examined,  and  ascertained,  and  there- 
fore is  the  more  terrible.  The  Jewish  law  therefore,  no 
less  than  the  Roman,  acting  upon  the  same  principle  of 
tenderness  forbids  us  to  kill  any  one,  who  has  taken  our 
goods,  unless  for  the  preservation  of  our  own  lives. 

XVI.*  What  has  been  already  said  of  the  right  of  de- 
fending our  persons  and  property,  though  regarding 
chiefly  private  war,  may  nevertheless  be  applied  to  public 
hostilities,  allowing  for  the  difference  of  circumstances. 
For  private  war  may  be  considered  as  an  instantaneous 
exercise  of  natural  right,  which  ceases  the  moment  that 
legal  redress  can  be  obtained.  Now  as  public  war  can 
never  take  place,  but  where  judicial  remedies  cease  to 
exist,  it  is  often  protracted,  and  the  spirit  of  hostility 
inflamed  by  the  continued  accession  of  losses  and  injuries. 
Besides,  private  war  extends  only  to  self-defence,  whereas 
sovereign  powers  have  a  right  not  only  to  avert,  but  to 
punish  wrongs.  From  whence  they  are  authorised  to 
prevent  a  remote  as  well  as  an  immediate  aggression. 
Though  the  suspicion  of  hostile  intentions,  on  the  part 
of  another  power,  may  not  justify  the  commencement  of 
actual  war,  yet  it  calls  for  measures  of  armed  prevention, 
and  will  authorise  indirect  hostility.  Points,  which  will 
be  discussed  in  another  place. 

XVII.  Some  writers   have   advanced   a  doctrine  which 
can  never  be  admitted,  maintaining  that  the  law  of  nations 
authorises    one    power   to    commence    hostilities    against 
another,  whose  increasing  greatness  awakens  her  alarms. 
As  a  matter  of  expediency  such  a  measure  may  be  adopted, 
but  the  principles  of  justice  can  never  be  advanced  in  its 
favour.     The    causes  which  entitle    a  war  to  the  denom- 
ination of  just  are  somewhat  different  from  those  of  expe- 
diency alone.     But  to  maintain  that  the  bare  probability 
of  some  remote,  or  future  annoyance  from   a  neighbour- 
ing state  affords  a  just  ground  of  hostile  aggression,  is  a 
doctrine   repugnant   to   every  principle  of  equity.     Such 
however   is    the    condition    of    human   life,    that  no    full 
security    can    be    enjoyed.     The    only  protection    against 
uncertain  fears   must   be   sought,  not  from  violence,  but 
from  the  divine  providence,  and  defensive  precaution. 

XVIII.  There  is  another  opinion,  not  more  admissible, 

*  Sections  XIII.  XIV.  and  XV.  of  the  original  are  omitted  in  the 
translation.  —  TRANSLATOR. 


84  HUGO   GROTIUS 

maintaining  that  the  hostile  acts  of  an  aggressor,  may 
be  considered  in  the  light  of  defensive  measures,  because, 
say  the  advocates  of  this  opinion,  few  people  are  con- 
tent to  proportion  their  revenge  to  the  injuries  they 
have  received ;  bounds  which  in  all  probability  the  party 
aggrieved  has  exceeded,  and  therefore  in  return  becomes 
himself  the  aggressor.  Now  the  excess  of  retaliation 
cannot,  any  more  than  the  fear  of  uncertain  danger,  give 
a  colour  of  right  to  the  first  aggression,  which  may  be 
illustrated  by  the  case  of  a  malefactor,  who  can  have  no 
right  to  wound  or  kill  the  officers  of  justice  in  their 
attempts  to  take  him,  urging  as  a  plea  that  he  feared 
the  punishment  would  exceed  the  offense. 

The  first  step,  which  an  aggressor  ought  to  take,  should 
be  an  offer  of  indemnity  to  the  injured  party,  by  the 
arbitration  of  some  independent  and  disinterested  state. 
And  if  this  mediation  be  rejected,  then  his  war  assumes 
the  character  of  a  just  war.  Thus  Hezekiah  when  he 
had  not  stood  to  the  engagements  made  by  his  ancestors, 
being  threatened  with  an  attack  from  the  King  of  Assyria 
on  that  account,  acknowledged  his  fault,  and  left  it  to  the 
King  to  assign  what  penalty  he  should  pay  for  the  offence. 
After  he  had  done  so,  finding  himself  again  attacked, 
relying  on  the  justice  of  his  cause,  he  opposed  the  enemy, 
and  succeeded  by  the  favour  of  God.  Pontius  the  Sam- 
nite,  after  restoration  of  the  prizes  had  been  made  to 
the  Romans,  and  the  promoter  of  the  war  delivered  up 
into  their  hands,  said,  <(We  have  now  averted  the  wrath 
of  heaven,  which  our  violation  of  treaties  had  provoked. 
But  the  supreme  being  who  was  pleased  to  reduce  us  to 
the  necessity  of  restoration,  was  not  equally  pleased  with 
the  pride  of  the  Romans,  who  rejected  our  offer.  What 
farther  satisfaction  do  we  owe  to  the  Romans,  or  to 
Heaven,  the  arbiter  of  treaties  ?  We  do  not  shrink  from 
submitting  the  measure  of  YOUR  resentment,  or  of  OUR 
punishment  to  the  judgment  of  any  people,  or  any  indi- 
vidual.* In  the  same  manner,  when  the  Thebans  had 
offered  the  most  equitable  terms  to  the  Lacedaemonians, 
who  still  rose  higher  in  their  demands,  Aristides  says, 
that  the  justice  of  the  cause  changed  sides  and  passed 
from  the  Lacedaemonians  to  the  Thebans. 


CHAPTER  II. 

THE  GENERAL  RIGHTS  OF  THINGS. 

The  general  rights  of  things  —  Division  of  what  is  our  own — The  origin 
and  progress  of  property  —  Some  things  impossible  to  be  made  the 
subject  of  property  —  The  Sea  of  this  nature,  in  its  full  extent,  or  in 
its  principal  parts — Unoccupied  lands  may  become  the  property  of 
individuals,  unless  they  have  been  previously  occupied  by  the  people 
at  large  —  Wild  beasts,  fishes,  birds,  may  become  the  property  of 
him  who  seizes  them  —  In  cases  of  necessity  men  have  a  right  of 
using  that  which  has  already  become  the  property  of  others  —  To 
sanction  this  indulgence,  the  necessity  must  be  such  that  it  cannot 
otherwise  be  avoided —  This  indulgence  not  allowed  where  the  posses- 
sor is  in  an  equal  degree  of  necessity  —  The  party  thus  supplying  his 
wants  from  another's  property,  bound  to  make  restitution  whenever 
it  is  possible.  The  application  of  this  principle  to  the  practice  of  war 
—  The  right  to  use  the  property  of  another,  provided  that  use  be  no 
way  prejudicial  to  the  owner —  Hence  the  right  to  the  use  of  running 
water — The  right  of  passing  through  countries,  and  by  rivers  ex- 
plained—  An  inquiry  into  the  right  of  imposing  duties  on  merchan- 
dise—  The  right  of  residing  for  a  time  in  a  foreign  state  —  The  right 
of  exiles  to  reside  in  the  dominions  of  a  foreign  state,  provided  they 
submit  to  its  laws  —  In  what  manner  the  right  of  occupying  waste 
places  is  to  be  understood  —  The  right  to  certain  articles  necessary  to 
the  support  of  human  society,  and  life  —  The  general  right  of  purchas- 
ing those  articles  at  a  reasonable  price  —  The  right  to  sell,  not  of 
equal  force  and  extent  —  The  right  to  those  privileges  which  are  pro- 
miscuously granted  to  foreigners  —  Inquiry  whether  it  be  lawful  to 
contract  with  any  people  for  the  purchase  of  their  productions  on 
condition  of  their  not  selling  the  same  to  others. 

I.  AMONG  the  causes  assigned  to  justify  war,  we  may 
reckon  the  commission  of  injury,  particularly  such  as 
affects  any  thing  which  belongs  to  us.  Now  we  establish 
this  claim  to  any  thing  as  our  own  either  by  a  right 
COMMON  to  us  as  men,  or  acquired  by  us  in  our  INDIVIDUAL 
capacity.  But  to  begin  with  that  which  is  the  common 
right  of  all  mankind;  we  may  observe  that  it  comprises 
what  is  called  by  legal  authorities,  Corporeal  and  Incor- 
poreal rights.* 

*Actvs  alzguos,  which  literally  signifies  certain  acts,  may  be  ren- 
dered by  the  term  incorporeal  rights,  which  imply  the  right  of  ways, 
dignities,  franchises,  and  many  other  personal  privileges  arising  out  of 
certain  corporeal  kinds  of  property. 

(85) 


86  HUGO   GROTIUS 

Things  corporeal  are  either  unappropriated,  or  made 
the  subjects  of  private  property.  Now  the  things  unap- 
propriated, are  such  that  it  may  be  either  possible  or  im- 
possible for  them  to  be  reduced  to  a  state  of  private 
property.*  In  order  therefore  to  understand  this  more 
clearly,  it  will  be  necessary  to  take  a  survey  of  the  origin 
of  property. 

II.  God  gave  to  mankind  in  general,  dominion  over  all 
the  creatures  of  the  earth,  from  the  first  creation  of  the 
world;  a  grant  which  was  renewed  upon  the  restoration 
of  the  world  after  the  deluge.  All  things,  as  Justin  says, 
fonned  a  common  stock  for  all  mankind,  as  the  inheritors 
of  one  general  patrimony.  From  hence  it  happened,  that 
every  man  seized  to  his  own  use  or  consumption  what- 
ever he  met  with;  a  general  exercise  of  a  right,  which 
supplied  the  place  of  private  property.  So  that  to  de- 
prive any  one  of  what  he  had  thus  seized,  became  an 
act  of  injustice.  Which  Cicero  has  explained  in  his  third 
book,  on  the  bounds  of  good  and  evil,  by  comparing  the 
world  to  a  Theatre,  in  which  the  seats  are  common  prop- 
erty, yet  every  spectator  claims  that  which  he  occupies, 
for  the  time  being,  as  his  own.  A  state  of  affairs,  which 
could  not  subsist  but  in  the  greatest  simplicity  of  man- 
ners, and  under  the  mutual  forbearance  and  good-will  of 
mankind.  An  example  of  a  community  of  goods,  arising 
from  extreme  simplicity  of  manners,  may  be  seen  in  some 
nations  of  America,  who  for  many  ages  have  subsisted 
in  this  manner  without  inconvenience.  The  Essenes  of 
old,  furnished  an  example  of  men  actuated  by  mutual 
affection  and  holding  all  things  in  common,  a  practice 
adopted  by  the  primitive  Christians  at  Jerusalem,  and 

*The  words  of  Judge  Blackstone  will  elucidate  the  meaning  of 
Grotius  in  this  place.  The  learned  Commentator  says,  «  There  are  some 
few  things,  which,  notwithstanding  the  general  introduction  and  continu- 
ance of  property,  must  still  unavoidably  remain  in  common ;  being  such 
wherein  nothing  but  an  usufructuary  property  is  capable  of  being  had : 
and  therefore  they  still  belong  to  the  first  occupant,  during  the  time  he 
holds  possession  of  them,  and  no  longer.  Such  (among  others)  are  the 
elements  of  light,  air,  and  water ;  which  a  man  may  occupy  by  means  of 
his  windows,  his  gardens,  his  mills,  and  other  conveniences:  such  also 
are  the  generality  of  those  animals  which  are  said  to  be  ferae  naturae, 
or  of  a  wild  and  untameable  disposition:  which  any  man  may  seise  upon 
and  keep  for  his  own  use  or  pleasure.  All  these  things,  so  long  as  they 
remain  in  possession,  every  man  has  a  right  to  enjoy  without  disturb- 
ance; but  if  once  they  escape  from  his  custody,  or  he  voluntarily 
abandons  the  use  of  them,  they  return  to  the  common  stock,  and  any 
man  else  has  a  right  to  seise  and  enjoy  them  afterwards. 


THE   RIGHTS   OF   WAR   AND   PEACE  87 

still  prevailing  among  some  of  the  religious  orders.  Man 
at  his  first  origin,  requiring  no  clothing,  afforded  a  proof 
of  the  simplicity  of  manners  in  which  he  had  been  formed. 
Yet  perhaps,  as  Justin  says  of  the  Scythians,  he  might 
be  considered  as  ignorant  of  vice  rather  than  acquainted 
with  virtue;  Tacitus  says,  that  in  the  early  ages  of  the 
world,  men  lived  free  from  the  influence  of  evil  passions, 
without  reproach,  and  wickedness;  and  consequently 
without  the  restraints  of  punishment.  In  primitive  times 
there  appeared  among  mankind,  according  to  Macrobius, 
a  simplicity,  ignorant  of  evil,  and  inexperienced  in  craft: 
a  simplicity  which  in  the  book  of  Wisdom  seems  to  be 
called  integrity,  and  by  the  Apostle  Paul  simplicity  in 
opposition  to  subtilty.  Their  sole  employment  was  the 
worship  of  God,  of  which  the  tree  of  life  was  the  sym- 
bol, as  it  is  explained  by  the  ancient  Hebrews,  whose 
opinion  is  confirmed  by  the  Book  of  Revelation. 

Men  at  that  period  subsisted  upon  the  spontaneous 
productions  of  the  ground:  a  state  of  simplicity  to  which 
they  did  not  long  adhere,  but  applied  themselves  to  the 
invention  of  various  arts,  indicated  by  the  tree  of  knowl- 
edge of  good  and  evil,  that  is  the  knowledge  of  those 
things  which  may  be  either  used  properly,  or  abused; 
which  Philo  calls  a  middle  kind  of  wisdom.  In  this  view, 
Solomon  says,  God  hath  created  men  upright,  that  is,  in 
simplicity,  but  they  have  sought  out  many  inventions,  or, 
in  the  language  of  Philo,  they  have  inclined  to  subtilty. 
In  the  sixth  oration  of  Dion  Prusaeensis  it  is  said,  (<the 
descendants  have  degenerated  from  the  innocence  of 
primitive  times,  contriving  many  subtile  inventions  no 
way  conducive  to  the  good  of  life ;  and  using  their  strength 
not  to  promote  justice,  but  to  gratify  their  appetites.* 
Agriculture  and  pasturage  seem  to  have  been  the  most  an- 
cient pursuits,  which  characterized  the  first  brothers.  Some 
distribution  of  things  would  necessarily  follow  these  differ- 
ent states ;  and  we  are  informed  by  holy  writ,  that  the  rivalry 
thus  created  ended  in  murder.  At  length  men  increas- 
ing in  wickedness  by  their  evil  communications  with 
each  other,  the  race  of  Giants,  that  is  of  strong  and  vio- 
lent men  appeared,  whom  the  Greeks  denominate  by  a 
title,  signifying  those  who  make  their  own  hands  and 
strength  the  measure  of  justice. 

The  world  in  progress  of  time  being  cleared  of  this 
race  by  the  deluge,  the  savage  was  succeeded  by  a  softer 
and  more  sensual  way  of  life,  to  which  the  use  of  wine 


88  HUGO   GROTIUS 

proved  subservient,  being  followed  by  all  the  evil  con- 
sequences of  intoxication.  But  the  greatest  breach  in  the 
harmony  of  men  was  made  by  ambition,  which  is  con- 
sidered in  some  measure,  as  the  offspring  of  a  noble 
mind.  Its  first  and  most  eminent  effects  appeared  in  the 
attempt  to  raise  the  tower  of  Babel ;  the  failure  of  which 
caused  the  dispersion  of  mankind,  who  took  possession  of 
different  parts  of  the  earth. 

Still  after  this  a  community  of  lands  for  pasture, 
though  not  of  flocks,  prevailed  among  men.  For  the 
great  extent  of  land  was  sufficient  for  the  use  of  all 
occupants,  as  yet  but  few  in  number,  without  their  in- 
commoding each  other.  In  the  words  of  the  Poet,  it  was 
deemed  unlawful  to  fix  a  land  mark  on  the  plain,  or  to 
apportion  it  out  in  stated  limits.  But  as  men  increased 
in  numbers  and  their  flocks  in  the  same  proportion,  they 
could  no  longer  with  convenience  enjoy  the  use  of  lands 
in  common,  and  it  became  necessary  to  divide  them  into 
allotments  for  each  family.  Now  in  the  hot  countries  of 
the  East,  wells  would  be  objects  of  great  importance,  for 
the  refreshment  of  their  herds  and  flocks;  so  that  in 
order  to  avoid  strife  and  inconvenience,  all  would  be 
anxious  to  have  them  as  possessions  of  their  own.  These 
accounts  we  derive  from  sacred  history,  and  they  are 
found  to  agree  with  the  opinions  maintained  upon  this 
subject  by  Philosophers  and  Poets,  who  have  described 
the  community  of  goods,  that  prevailed  in  the  early  state 
of  the  world,  and  the  distribution  of  property  which 
afterwards  took  place.  Hence  a  notion  may  be  formed  of 
the  reason  why  men  departed  from  the  primaeval  state 
of  holding  all  things  in  common,  attaching  the  ideas  of 
property,  first  to  moveable  and  next  to  immoveable 
things. 

When  the  inhabitants  of  the  earth  began  to  acquire  a 
taste  for  more  delicate  fare  than  the  spontaneous  pro- 
ductions of  the  ground,  and  to  look  for  more  commodious 
habitations  than  caves,  or  the  hollow  of  trees,  and  to 
long  for  more  elegant  cloathing  than  the  skins  of  wild 
beasts,  industry  became  necessary  to  supply  those  wants, 
and  each  individual  began  to  apply  his  attention  to  some 
particular  art.  The  distance  of  the  places  too,  into  which 
men  were  dispersed,  prevented  them  from  carrying  the 
fruits  of  the  earth  to  a  common  stock,  and  in  the  next 
place,  the  WANT  of  just  principle  and  equitable  kindness 
would  destroy  that  equality  which  ought  to  subsist  both 


THE   RIGHTS  OF   WAR   AND   PEACE  89 

in  the  labour  of  producing  and  consuming  the  necessaries 
of  life. 

At  the  same  time,  we  learn  how  things  passed  from 
being  held  in  common  to  a  state  of  property.  It  was 
not  by  the  act  of  the  mind  alone  that  this  change  took 
place.  For  men  in  that  case  could  never  know,  what 
others  intended  to  appropriate  to  their  own  use,  so  as  to 
exclude  the  claim  of  every  other  pretender  to  the  same; 
and  many  too  might  desire  to  possess  the  same  thing. 
Property  therefore  must  have  been  established  either  by 
express  agreement,  as  by  division,  or  by  tacit  consent,  as 
by  occupancy.  For  as  soon  as  it  was  found  inconvenient 
to  hold  things  in  common,  before  any  division  of  lands 
had  been  established,  it  is  natural  to  suppose  it  must 
have  been  generally  agreed,  that  whatever  any  one  had 
occupied  should  be  accounted  his  own.  Cicero,  in  the 
third  book  of  his  Offices  says,  it  is  admitted  as  an  uni- 
versal maxim,  not  repugnant  to  the  principles  of  natural 
law,  that  every  one  should  rather  wish  himself  to  enjoy 
the  necessaries  of  life,  than  leave  them  for  the  acqui- 
sition of  another.  Which  is  supported  by  Quintilian,  who 
says,  if  the  condition  of  life  be  such,  that  whatever  has 
fallen  to  the  private  use  of  any  individual,  becomes  the 
property  of  such  holder,  it  is  evidently  unjust  to  take 
away  any  thing  which  is  possessed  by  such  a  right.  And 
the  ancients  in  styling  Ceres  a  law-giver,  and  giving  the 
name  of  Thesmophoria  to  her  sacred  rights,  meant  by 
this  to  signify  that  the  division  of  lands  had  given  birth 
to  a  new  kind  of  right. 

III.  Notwithstanding  the  statements  above  made,  it 
must  be  admitted  that  some  things  are  impossible  to  be 
reduced  to  a*  state  of  property,  of  which  the  Sea  affords 
us  an  instance  both  in  its  general  extent,  and  in  its 
principal  branches.  But  as  some  are  willing  to  make 
this  concession  with  regard  to  individuals,  but  not  with 
regard  to  nations,  the  position  advanced  in  the  beginning 
of  this  section  may  be  proved  from  the  following  moral 
argument,  that  as  in  this  case  the  reason  no  longer  sub- 
sists why  men  should  hold  all  things  in  common,  the 
practice  ceases  also.  For  the  magnitude  of  the  sea  is 
such,  as  to  be  sufficient  for  the  use  of  all  nations,  to 
allow  them  without  inconvenience  and  prejudice  to  each 
other  the  right  of  fishing,  sailing,  or  any  other  advantage 
which  that  element  affords.  The  same  may  be  said  of 
air  as  common  property,  except  that  no  one  can  use  or 


90  HUGO   GROTIUS 

enjoy  it,  without  at  the  same  time  using  the  ground  over 
which  it  passes  or  rests.  So  that  the  amusement  of  fowl- 
ing cannot  be  followed,  except  by  permission,  without 
trespassing  upon  the  lands  of  some  owner,  over  which 
the  birds  fly. 

The  same  appellation  of  COMMON  may  be  given  to  the 
sand  of  the  shore,  which  being  incapable  of  cultiva- 
tion, is  left  free  to  yield  its  inexhaustable  supplies  for  the 
use  of  all. 

There  is  a  natural  reason  also,  which  renders  the  sea, 
considered  in  the  view  already  taken,  incapable  of  being 
made  property:  because  occupancy  can  never  subsist,  but 
in  things  that  can  be  confined  to  certain  permanent 
bounds.  From  whence  Thucydides  gives  the  name  of  in- 
finite space  to  unoccupied  lands,  and  Isocrates  speaking 
of  that  occupied  by  the  Athenians  calls  it  that  which  has 
been  measured  by  us  into  alloted  parts.  But  fluids,  which 
cannot  be  limited  or  restrained,  except  they  be  contained 
within  some  other  substance,  cannot  be  occupied.  Thus 
ponds,  and  lakes  and  rivers  likewise,  can  only  be  made 
property  as  far  as  they  are  confined  within  certain  banks. 
But  the  ocean  as  it  is  equal  to,  or  larger  than  the  earth, 
cannot  be  confined  within  the  land:  so  that  the  ancients 
said  the  earth  was  bounded  in  by  the  sea  like  a  girdle 
surrounding  it.  Nor  can  any  imaginable  division  of  it 
have  been  originally  framed.  For  as  the  greatest  part  of 
it  was  unknown,  it  was  impossible  that  nations  far  re- 
moved from  each  other  could  agree  upon  the  bounds  to 
be  assigned  to  different  parts. 

Whatever  therefore  was  the  common  property  of  all, 
and  after  a  general  division  of  all  other  things,  retained 
its  original  state,  could  not  be  appropriated  by  division, 
but  by  occupancy.  And  the  marks  of  distinction  and 
separation  by  which  its  different  parts  were  known,  fol- 
lowed such  appropriation. 

IV.  The  next  matters  to  be  noticed  are  those  things, 
which  though  not  yet  made  property,  may  be  reduced  to 
that  condition.  Under  this  description  come  waste  lands, 
desert  islands,  wild  beasts,  fishes,  and  birds.  Now  in 
these  cases  there  are  two  things  to  be  pointed  out, 
which  are  a  double  kind  of  occupancy  that  may  take 
place ;  the  one  in  the  name  of  the  Sovereign,  or  of  a  whole 
people,  the  other  by  individuals,  converting  into  private 
estates  the  lands  which  they  have  so  occupied.  The 
latter  kind  of  individual  property  proceeds  rather  from 


THE  RIGHTS  OF  WAR  AND  PEACE       91 

assignment  than  from  free  occupancy.  Yet  any  places 
that  have  been  taken  possession  of  in  the  name  of  a  sov- 
ereign, or  of  a  whole  people,  though  not  portioned  out 
amongst  individuals,  are  not  to  be  considered  as  waste 
lands,  but  as  the  property  of  the  first  occupier,  whether 
it  be  the  King,  or  a  whole  people.  Of  this  description  are 
rivers,  lakes,  forests,  and  wild  mountains. 

V.  As  to  wild  beasts,  fishes,  and  birds,  it  is  to  be  ob- 
served   that   the    sovereign    of    the    respective   lands,    or 
waters  where   they  are   found,  has  a  legal  right  to   pro- 
hibit any  one  from  taking  them,  and   thereby  acquiring 
a  property  in  them.     A  prohibition  extending  to  foreign- 
ers, as  well  as   subjects.     To   foreigners;   because  by  all 
the  rules  of  moral  law  they  owe  obedience  to  the  sover- 
eign, for  the  time  during  which  they  reside  in  his  terri- 
tories.    Nor  is  there  any  validity  in  the  objection  founded 
on  the  Roman   Law,  the  Law  of  nature,  or  the  Law  of 
nations,    which,   it    is    said,  declare    such    animals   to   be 
beasts  of  chace  free  to  every  one's  hunting.     For  this  is 
only  true,  where   there   is   no  civil   law   to  interpose  its 
prohibition;  as  the  Roman  law  left  many  things  in  their 
primitive  state,  which  by  other  nations  were  placed  upon 
a  very  different  footing.     The   deviations  therefore  from 
the  state  of  nature,  which   have  been  established  by  the 
civil  law,  are  ordained  by  every  principle  of  natural  just- 
ice   to   be    obeyed   by  mankind.     For   although  the  civil 
law  can  enjoin  nothing  which  the  law  of  nature  prohib- 
its, nor  prohibit  any  thing   which   it  enjoins,  yet  it  may 
circumscribe  natural  liberty,  restraining  what  was  before 
allowed;  although  the  restraint  should  extend  to  the  very 
acquisition  of  property,  to  which  every  man  AT  FIRST  had 
a  right  by  the  law  of  nature. 

VI.  The  next  thing  to  be  considered  is  the  right,  which 
men  have  to  the  common  use  of  things,  already  appro- 
priated; terms,  in  which  at   the  first  sight  there  appears 
to   be   some   inconsistency,  as   it  appears  that  the  estab- 
lishment of  property  has  absorbed  every  right  that  sprung 
from  a  state  of  things  held  in   common.     But  this  is  by 
no  means  the  case.     For  the  intention  of  those,  who  first 
introduce   private   property,  must   be   taken   into  the  ac- 
count.    And   it   was   but   reasonable  to  suppose,  that  in 
making  this  introduction  of  property,  they  would  depart 
as  little  as  possible   from  the  original  principles  of  natu- 
ral equity.     For  if  written  laws  are  to  be  construed  in  a 
sense,  approaching   as   nearly  as   possible  to  the  laws  of 


92  HUGO  GROTIUS 

nature,  much  more  so  are  those  customs  which  are  not 
fettered  with  the  literal  restrictions  of  written  maxims. 
From  hence  it  follows  that  in  cases  of  extreme  necessity, 
the  original  right  of  using  things,  as  if  they  had  remained 
in  common,  must  be  revived;  because  in  all  human  laws, 
and  consequently  in  the  laws  relating  to  property,  the 
case  of  extreme  necessity  seems  to  form  an  exception. 

Upon  this  principle  is  built  the  maxim  that  if  in  a 
voyage  provisions  begin  to  fail,  the  stock  of  every  indi- 
vidual ought  to  be  produced  for  common  consumption; 
for  the  same  reason  a  neighbouring  house  may  be  pulled 
down  to  stop  the  progress  of  a  fire :  or  the  cables  or  nets, 
in  which  a  ship  is  entangled,  may  be  cut,  if  it  cannot 
otherwise  be  disengaged.  Maxims,  none  of  which  were 
introduced  by  the  civil  law,  but  only  explained  by  it 
according  to  the  rules  of  natural  equity. 

Now  among  Theologians  also  it  is  a  received  opinion, 
that  if  in  urgent  distress,  any  one  shall  take  from  another 
what  is  absolutely  necessary  for  the  preservation  of  his 
own  life,  the  act  shall  not  be  deemed  a  theft.  A  rule 
not  founded,  as  some  allege,  solely  upon  the  law  of 
charity,  which  obliges  every  possessor  to  apply  some  part 
of  his  wealth  to  relieve  the  needy;  but  upon  the  original 
division  of  lands  among  private  owners,  which  was  made 
with  a  reservation  in  favour  of  the  primitive  rights  of 
nature.  For  if  those  who  at  first  made  the  division  had 
been  asked  their  opinion  upon  this  point,  they  would 
have  given  the  same  reason  that  has  just  been  advanced. 
Necessity,  says  Seneca,  the  great  protectress  of  human 
infirmity  breaks  through  all  human  laws,  and  all  those 
made  in  the  spirit  of  human  regulations.  Cicero  in  his 
eleventh  Philippic,  says,  that  Cassius  went  into  Syria, 
which  might  be  considered  as  another's  province,  if  men 
adhered  to  written  laws,  but  if  these  were  abolished,  it 
would  be  considered  as  his  own  by  the  law  of  nature. 
In  the  sixth  book  and  fourth  chapter  of  Quintus  Curtius, 
we  find  an  observation,  that  in  a  common  calamity  every 
man  looks  to  himself. 

VII.  Now  this  indulgence  must  be  granted  with  pre- 
cautions and  restrictions,  to  prevent  it  from  degener- 
ating into  licentiousness.  And  of  these  precautions,  the 
first  requires  the  distressed  party  to  try  every  mode  of 
obtaining  relief,  by  an  appeal  to  a  magistrate,  or  by  try- 
ing the  effect  of  entreaty  to  prevail  upon  the  owner  to 
grant  what  is  necessary  for  his  pressing  occasions, 


THE  RIGHTS  OF  WAR  AND  PEACE       93 

Plato  allows  any  one  to  seek  water  from  his  neighbour's 
well,  after  having  dug  to  a  certain  depth  in  his  own 
without  effect.  Solon  limits  the  depth  to  forty  cubits; 
upon  which  Plutarch  remarks,  that  he  intended  by  this 
to  relieve  necessity  and  difficulty,  but  not  to  encourage 
sloth.  Xenophon  in  his  answer  to  the  Sinopians,  in  the 
fifth  book  of  the  expedition  of  Cyrus,  says,  <(  wherever 
we  come,  whether  into  a  barbarous  country  or  into  any 
part  of  Greece,  and  find  the  people  unwilling  to  afford  us 
supplies,  we  take  them,  not  through  motives  of  wan- 
tonness, but  from  the  compulsion  of  necessity.* 

VIII.  In  the  next   place  this    plea  of  necessity  cannot 
be  admitted,  where  the  possessor  is  in  an  equal  state  of 
necessity   himself.     For    under   equal    circumstances   the 
owner  has    a   better  right  to  the  use  of  his  possessions. 
Though  Lactantius  maintains  that  it  is  no  mark  of  folly  to 
forbear  thrusting  another  from  the  same  plank  in  a  ship- 
wreck in  order  to  save  yourself.     Because  you  have  thereby 
avoided  hurting  another :  a  sin  which  is  certainly  a  proof 
of  wisdom  to  abstain  from.     Cicero,  in  the  third  book  of 
his  offices,  asks  this  question,  if   a  wise  man,  in    danger 
of  perishing  with   hunger,  has   not  a  right   to  take   the 
provisions    of    another,  who    is    good    for    nothing?     To 
which  he  replies;     By  no   means.     For  no  one's   life  can 
be  of  such   importance    as   to   authorize   the  violation  of 
that  general  rule  of  forbearance,  by  which  the  peace  and 
safety  of  every  individual  are  secured. 

IX.  In    the   third   place,  the  party  thus  supplying  his 
wants  from  the   property  of   another,  is    bound    to  make 
restitution,  or  give  an  equivalent  to  the  owner,  whenever 
that  is  possible.     There  are  some  indeed,  who  deny  this, 
upon  the  ground  that  no  one  is  bound  to  give  an  indemnity 
for  having  exercised   his  own  right.     But   strictly  speak- 
ing, it  was  not  a  full    and  perfect   right,  which  he  exer- 
cised; but  a  kind  of  permission,  arising  out  of  a  case  of 
necessity,  and  existing  no  longer  than  while  the  necessity 
continued.     For  such  a   permissive  right  is  only  granted 
in  order  to  preserve   natural  equity  in  opposition  to   the 
strict  and  churlish  rigour  of  exclusive  ownership. 

X.  Hence  it  may  be  inferred,  that,  in  the  prosecution 
of  a  just  war,  any  power   has  a  right  to   take  possession 
of   a   neutral    soil;    if   there   be    real   grounds,    and    not 
imaginary  fears  for  supposing  the  enemy  intends  to  make 
himself   master   of    the    same,  especially   if   the   enemy's 
occupying  it  would  be  attended  with  imminent  and  irrepar- 


94  HUGO   GROTIUS 

able  mischief  to  that  same  power.  But  in  this  case  the 
restriction  is  applied  that  nothing  be  taken  but  what  is 
actually  necessary  to  such  precaution  and  security.  Barely 
occupying  the  place  is  all  that  can  be  justified:  leaving 
to  the  real  owner  the  full  enjoyment  of  all  his  rights, 
immunities,  and  jurisdiction,  and  all  the  productions  of 
his  soil.  And  this  must  be  done  too  with  the  full  inten- 
tion of  restoring  the  place  to  its  lawful  Sovereign,  when- 
ever the  necessity,  for  which  it  was  occupied,  may  cease. 
The  retaining  of  Enna,  Livy  says,  was  either  an  act  of 
violence,  or  a  necessary  measure;  by  violence  meaning 
the  least  departure  from  necessity.  The  Greeks,  who 
were  with  Xenophon  being  in  great  want  of  ships,  by 
Xenophon's  own  advice,  seized  upon  those  that  were 
passing,  still  preserving  the  property  untouched  for  the 
owners,  supplying  the  sailors  with  provisions,  and  paying 
them  wages.  The  principal  right  therefore,  founded  upon 
the  original  community  of  goods,  remaining  since  the 
introduction  of  property,  is  that  of  necessity,  which  has 
just  been  discussed. 

XI.  There  is   another   right,  which   is   that  of   making 
use  of  the  property  of  another,  where  such  use  is  attended 
with  no  prejudice  to  the  owner.     For  why,  says    Cicero, 
should  not  any  one ;  when  he  can  do  it  without  injury  to 
himself,  allow  another  to  share   with    him   those   advan- 
tages,  which    are    useful    to    the    receiver,    and  no   way 
detrimental    to    the   giver  ?     Seneca    therefore    observes, 
that  it  is  no  favour  to  allow  another  to  light  his  fire  from 
your  flame.     And  in  the  7th  book  of  Plutarch's  Symposiacs, 
we  find  an   observation,    that   when   we   have   provisions 
more  than  sufficient  for  our  own  consumption  it  is  wicked 
to  destroy   the   remainder;   or    after   supplying   our   own 
wants,  to  obstruct  or   destroy   the   springs  of   water;   or 
after  having  finished  our  voyage,  not  to  leave  for    other 
passengers  the  sea-marks,  that   have  enabled  us  to  steer 
our  course. 

XII.  Upon   the   principles   already  established,  a  river, 
as  such,  is  the  property  of  that  people,  or  of  the  sovereign 
of  that  people,    through    whose    territories  it   flows.     He 
may  form  quays,  and  buttresses  upon    that  river,  and  to 
him  all  the  produce  of  it  belongs.     But  the    same  river, 
as  a  running  water,  still  remains  common  to  all  to  draw 
or  drink  it.     Ovid  introduces  Latona  thus  addressing  the 
Lydians,  <{  Why  do  you  refuse  water,  the  use  of  which  is 
common?"   where   he   calls    water  a   public  gift   that  is 


THE   RIGHTS   OF   WAR   AND   PEACE  95 

common  to  men,  taking  the  word  public  in  a  more  gen- 
eral sense  than  as  applied  to  any  PEOPLE,  a  meaning  in 
which  some  things  are  said  to  be  public  by  the  law  of 
nations.  And  in  the  same  sense  Virgil  has  asserted  water 
to  be  free  and  open  to  all  men. 

XIII.  It  is  upon  the  same  foundation  of  common 
right,  that  a  free  passage  through  countries,  rivers,  or 
over  any  part  of  the  sea,  which  belongs  to  some  particular 
people,  ought  to  be  allowed  to  those,  who  require  it  for 
the  necessary  occasions  of  life;  whether  those  occasions 
be  in  quest  of  settlements,  after  being  driven  from  their 
own  country,  or  to  trade  with  a  remote  nation,  or  to 
recover  by  just  war  their  lost  possessions.  The  same 
reason  prevails  here  as  in  the  cases  above  named.  Because 
property  was  originally  introduced  with  a  reservation  of 
that  use,  which  might  be  of  general  benefit,  and  not 
prejudical  to  the  interest  of  the  owner:  an  intention  evi- 
dently entertained  by  those,  who  first  devised  the  separation 
of  the  bounteous  gifts  of  the  creator  into  private  posses- 
sions. There  is  a  remarkable  instance  of  this  in  the 
Mosaic  history,  when  the  leader  of  the  children  of  Israel 
required  a  free  passage  for  that  people,  promising  to  the 
King  of  Edom,  and  to  the  King  of  the  Amorites,  that  he 
would  go  by  the  highway,  without  setting  a  foot  upon 
the  soil  of  private  possessions,  and  that  the  people  should 
pay  the  price  of  everything,  which  they  might  have 
occasion  to  use.  Upon  these  equitable  terms  being  re- 
jected, Moses  was  justified  in  making  war  upon  the 
Amorites.  Because,  says  Augustin,  an  inoffensive  passage, 
a  right  interwoven  with  the  very  frame  of  human  society, 
was  refused.  The  Greeks  under  the  command  of 
Clearchus,  said,  <(  we  are  upon  the  way  to  our  home,  if  no 
one  interrupt  us;  but  every  attempt  to  molest  us,  we  are, 
with  the  assistance  of  heaven,  determined  to  avenge." 

Not  unlike  this  answer  of  the  soldiers  under  Clearchus 
is  the  question  put  to  the  different  nations  of  Thrace  by 
Agesilaus,  who  desired  to  know  whether  they  wished  him 
to  pass  through  their  country  as  a  friend,  or  as  an  en- 
emy. When  the  Boeotians  hesitated  upon  some  proposi- 
tions made  to  them  by  Lysander,  he  asked  them  whether 
they  intended  that  he  should  pass  with  erected  or  inclined 
spears,  meaning  by  the  expression  in  a  hostile  or  a  quiet 
manner.  We  are  informed  by  Tacitus,  that  the  Batavians, 
as  soon  as  they  came  near  the  camp  at  Bonn,  sent  a 
message  to  Herennius  Gallus,  importing  that  "they  had 


96  HUGO   GROTIUS 

no  hostile  design;  that  if  not  obstructed,  they  would 
march  in  a  peaceable  manner;  but  if  they  met  with  op- 
position they  would  cut  their  way  sword  in  hand.  J>  When 
Cimon  in  carrying  supplies  to  the  Lacedaemonians,  had 
marched  with  his  troops  through  some  part  of  the  Cor- 
inthian district,  the  Corinthians  expostulated  upon  his 
conduct  as  a  violation  of  their  territory,  because  he  had 
done  it  without  asking  their  leave,  at  the  same  time  ob- 
serving, that  no  one  knocks  at  another  man's  door,  or 
presumes  to  enter  the  house  without  obtaining  the  mas- 
ter's leave.  To  whom  he  replied,  you  never  knocked  at 
the  gates  of  Cleone  and  Megara,  but  broke  them  down, 
believing,  I  suppose,  that  no  right  ought  to  withstand 
the  force  of  the  mighty. 

Now  between  these  two  extremes  there  is  a  middle 
course,  requiring  a  free  passage  to  be  first  asked;  the 
refusal  of  which  will  justify  the  application  of  force. 
Thus  Agesilaus  in  his  return  from  Asia  when  he  had 
asked  a  passage  of  the  King  of  the  Macedonians,  who 
answered  that  he  would  consider  of  it,  said,  you  may 
consider,  if  you  please,  but  we  shall  pass  in  the  mean  time. 

The  fears,  which  any  power  entertains  from  a  multi- 
tude in  arms  passing  through  its  territories,  do  not  form 
such  an  exception  as  can  do  away  the  rule  already  laid 
down.  For  it  is  not  proper  or  reasonable  that  the  fears 
of  one  party  should  destroy  the  rights  of  another.  Es- 
pecially, as  necessary  precautions  and  securities  may  be 
used,  such  as  those,  for  instance,  of  requiring  that  the 
troops  shall  pass  without  arms,  or  in  small  bodies;  a 
promise  which  the  Agrippinians  made  to  the  Germans. 
And,  as  we  are  informed  by  Strabo,  the  practice  still 
prevails  in  the  country  of  the  Eleans.  Another  security 
may  be  found  in  providing  garrisons  at  the  expense  of 
the  party,  to  whom  the  passage  is  granted ;  or  in  giving 
hostages;  the  condition,  which  Seleucus  demanded  of 
Demetrius,  for  permitting  him  to  remain  within  his  ter- 
ritories. Nor  is  the  fear  of  offending  that  power,  which 
is  the  object  of  attack,  a  sufficient  pretext  for  refusing 
the  passage  of  the  troops  to  the  state  that  is  engaged  in 
a  just  war.  Nor  is  it  a  proper  reason  to  assign  for  a 
refusal,  to  say  that  another  passage  may  be  found;  as 
every  other  power  might  allege  the  same,  and  by  this 
means  the  right  of  passage  would  be  entirely  defeated. 
The  request  of  a  passage  therefore,  by  the  nearest  and 
most  commodious  way,  without  doing  injury  and  mis- 


THE   RIGHTS   OF   WAR   AND   PEACE  97 

chief,  is  a  sufficient  ground  upon  which  it  should  be 
granted.  It  alters  the  case  entirely,  if  the  party  making 
the  request  is  engaged  in  unjust  war,  and  is  marching 
with  the  troops  of  a  power  hostile  to  the  sovereign  of 
that  territory;  for  in  this  instance,  a  passage  may  be 
refused.  For  the  sovereign  has  a  right  to  attack  that 
power  in  his  own  territory,  and  to  oppose  its  march. 

Now  a  free  passage  ought  to  be  allowed  not  only  to 
persons,  but  to  merchandise.  For  no  power  has  a  right 
to  prevent  one  nation  from  trading  with  another  at  a 
remote  distance;  a  permission  which  for  the  interest  of 
society  should  be  maintained.  Nor  can  it  be  said  that 
any  one  is  injured  by  it.  For  though  he  may  be  thereby 
deprived  of  an  exclusive  gain,  yet  the  loss  of  what  is  not 
his  due,  as  a  MATTER  OF  RIGHT,  can  never  be  considered 
as  a  damage  or  the  violation  of  a  claim. 

XIV.  But  it  will  form  a  subject  of  inquiry,  whether 
the  sovereign  of  the  country  has  a  right  to  impose  duties 
on  goods  carried  by  land,  or  upon  a  river  or  upon  any 
part  of  the  sea,  which  may  form  an  accession  to  his 
dominions.  It  would  undoubtedly  be  unjust  for  any 
burdens  foreign  to  the  nature  of  trade  to  be  imposed 
upon  such  goods.  Thus  strangers  merely  passing  through 
a  country  would  have  no  right  to  pay  a  poll-tax,  imposed 
to  support  the  exigencies  of  the  state.  But  if  the  sover- 
eign incurs  expence  by  providing  security  and  protection 
to  trade,  he  has  a  right  to  reimburse  himself  by  the 
imposition  of  moderate  and  reasonable  duties.  It  is  the 
REASONABLENESS  of  them,  which  constitutes  the  justice 
of  customs  and  taxes.  Thus  Solomon  received  tolls  for 
horses  and  linen  that  passed  over  the  Isthmus  of  Syria. 
Pliny,  speaking  of  frankincense,  observes  that  as  it  could 
not  be  transported  but  by  the  Gebanites,  a  duty  upon  it 
was  paid  to  their  king.  In  the  same  manner,  as  Strabo 
informs  us  in  his  fourth  book,  the  people  of  Marseilles 
derived  great  wealth  from  the  canal  which  Marius  had 
made  from  the  Rhone  to  the  sea,  by  exacting  tribute  of 
all  that  sailed  upon  it  to  and  fro  with  vessels.  In  the 
eighth  book  of  the  same  writer,  we  are  told  that  the 
Corinthians  imposed  a  duty  upon  all  goods,  which,  to 
avoid  the  dangerous  passage  of  Cape  Malea,  were  trans- 
ported by  land  from  sea  to  sea.  The  Romans  too  made 
the  passage  of  the  Rhine  a  source  of  tribute,  and  Seneca 
relates  that  a  toll  was  paid  for  going  over  bridges. 
7 


98  HUGO  GROTIUS 

The  works  of  legal  writers  abound  in  instances  of  this 
kind.  But  it  frequently  happens  that  extortion  is  prac- 
tised in  these  matters,  which  Strabo  forms  into  a  subject 
of  complaint  against  chiefs  of  the  Arabian  tribes,  con- 
cluding that  it  would  be  unlikely  for  men  of  that  lawless 
kind  to  impose  upon  the  goods  of  merchants  any  duties 
that  were  not  oppressive. 

XV.  Those    going    with    merchandise    or   only  passing 
through  a  country,  ought  to  be  allowed  to  reside   there 
for  a  time,  if  the  recovery  of  health,  or  any  other  just 
cause  should  render  such  residence  necessary.     For  these 
may  be  reckoned  among  the  innocent  uses  of  our  right. 
Thus    Ilioneus  in  Virgil   calls   heaven   to  witness  the  in- 
justice   of   the    Africans    in    driving   him    and   his    ship- 
wrecked   companions    from    the    hospitable    use    of    the 
shore,  and  we   are   informed   by  Plutarch   in  his   life   of 
Pericles  that  all  the  Grecians  approved  of  the  complaint, 
which    the    Megarensians    made    against   the   Athenians, 
who   had   prohibited   them    from    setting   foot   upon   the 
soil  of  their  territories,  or  carrying   a  vessel  into  their 
harbours.     So  the  Lacedaemonians   regarded  this  as  the 
most  sufficient  grounds  to  justify  the  war. 

From  hence  results  the  right  of  erecting  a  temporary 
hut,  upon  the  shore,  although,  for  instance,  the  same 
shore  is  allowed  to  be  the  property  of  the  people  of  that 
place.  For  what  Pomponius  says  of  its  being  necessary 
to  obtain  the  Praetor's  leave,  before  a  building  can  be 
raised  upon  the  public  shore,  relates  to  structures  of  a 
permanent  kind,  when  the  massy  piles  of  stone,  as  the 
Poet  says,  encroach  upon  the  sea,  and  the  affrighted  fish 
feel  their  waves  contracted. 

XVI.  Nor  ought  a  permanent  residence  to  be  refused 
to  foreigners,    who,  driven  trom  their  own  country,  seek 
a   place   or   refuge.     But   then   it  is  only  upon  condition 
that  they  submit  to  the  established  laws  of  the  place,  and 
avoid  every  occasion  of  exciting  tumult  and  sedition.     A 
reasonable  rule,  which  the  divine  poet  has  observed,  when 
he  introduces  Aeneas  making  an  offer  that  Latinus,  who 
had  become   his   father-in-law,   should  retain  all  military 
and    civil    power.     And   in    Dionysius    of   Halicarnassus, 
Latinus  admits  the  proposal  of  Aeneas  to  be  just;  as  he 
came    through    necessity   in   quest   of   a  settlement.     To 
drive   away  refugees,  says  Strabo,  from  Eratosthenes,  is 
acting   like   barbarians;   and   a   conduct  like  this  in  the 


THE   RIGHTS   OF   WAR   AND   PEACE  99 

Spartans  was  also  condemned.  St.  Ambrose  passes  the 
same  sentence  of  condemnation  upon  those  powers,  who 
refuse  all  admission  to  strangers.  Yet  settlers  of  this 
description  have  no  right  to  demand  a  share  in  the  gov- 
ernment. A  proposal  of  this  kind  made  by  the  Minyae 
to  the  Lacedaemonians,  who  had  received  them,  is  very 
properly  considered  by  Herodotus  as  insolent,  and  un- 
reasonable. 

XVII.  It  is  indeed  but  an  act  of  common  humanity  in 
a   sovereign   to   allow  strangers,  at  their  request,  liberty 
to    fix    their   residence   upon   any   waste   or  barren  lands 
within   his    dominions,    still   reserving  to  himself  all  the 
rights    of   sovereignty.     Seven    hundred   acres  of  barren 
and   uncultivated   land,    as  Servius  observes,  were  given 
by  the  native  Latins  to  the  Trojans.     Dion  Prusaeensis, 
in   his  seventh   oration,  says,  that  they  commit  no  crime 
of    tresspass,    who    take    upon    them    to    cultivate    waste 
lands.     The  refusal  of  this  privilege  made  the  Ansibarians 
exclaim,  <(the   firmament   over  our  heads  is  the  mansion 
of  the   deity:   the    earth   was   given  to   man;    and   what 
remains   unoccupied,    lies   in    common   to  all."     Yet  that 
complaint  did  not  apply  exactly  to  their  case.     For  those 
lands   could  not  be  called  unoccupied,  as  they  served  to 
supply    the    Roman    army    with    forage   for  their  cattle, 
which  certainly  furnished  the  Romans  with  a  just  pretext 
for   refusing   to    grant   their  request.     And  with  no  less 
propriety  the  Romans  asked  the  Galli  Senones  if  it  were 
right  to  demand  lands  already  possessed,  and  to  threaten 
to  take  them  by  force. 

XVIII.  Since  the  COMMON  RIGHT  TO  THINGS  has  been  es- 
tablished, the  COMMON  RIGHT  TO  ACTIONS  follows  next  in 
order,  and  this  right  is  either  absolute,  or  established  by 
the  supposition  of  a  general  agreement  amongst  mankind. 
Now  all  men  have  absolutely  a  right  to  do  such  or  such 
acts  as  are  necessary  to  provide  whatever  is  essential   to 
the    existence    or   convenience    of   life.     CONVENIENCE    is 
included  in  this  right;   for  there  is  no  occasion  here   to 
imagine  an  existence  of  the  same  necessity  as  was  requi- 
site to  authorize  the  seizing  of  another's  property.     Be- 
cause   the    point    of    discussion    here    is    not     whether 
any   act   is    done    AGAINST    THE    WILL    of  an  owner,  but 
whether    we    acquire    what   is   necessary   for   our  wants 
ACCORDING  TO  THE  TERMS  to  which  the  owner  has  agreed.* 

*  The  meaning  of  Grotius  in  this  Section  will  be  more  clearly  under- 


ioo  HUGO   GROTIUS 

Supposing  there  is  nothing  illegal  in  the  contract,  nor 
any  wilful  intention  on  his  part  to  make  it  null  and  void. 
For  any  impediment  created  by  the  owner  in  such  trans- 
actions, is  repugnant  to  the  very  principles  of  natural 
justice,  which  suppose  an  equality  of  upright  dealing  to 
subsist  in  both  the  parties  concerned.  St.  Ambrose  calls 
a  fraudulent  conduct  of  that  kind,  an  attempt  to  deprive 
men  of  their  share  in  the  goods  of  a  common  parent,  to 
withhold  the  productions  of  nature  which  are  the  birth- 
right of  all,  and  to  destroy  that  commerce  which  is  the 
very  support  of  life.  For  we  are  not  treating  of  super- 
fluities and  luxuries,  but  of  those  things,  which  are  essen- 
tial to  life,  as  physic,  food  and  cloathing. 

XIX.  From  what  has   already   been    proved,  it   follows 
that  all  men  have  a  right  to  purchase  the  necessaries  of 
life  at  a  reasonable  price,  except  the  owners  want  them 
for   their   own  use.     Thus   in   a  great   scarcity   of   corn, 
there    would   be   no   injustice  in    their   refusing   to    sell. 
And  yet  in  such  a  time  of  necessity  foreigners,  who  have 
been  once  admitted,  cannot  be   driven  away;  but  as   St. 
Ambrose  shews  in  the  passage  already  quoted,  a  common 
evil  must  be  borne  by  all  alike. 

XX.  Now  owners  have   not  the  same  right  in  the  sale 
of  their  goods :  for  others  are  at  full  liberty  to  determine 
whether  they  will  purchase  certain  articles  or  not.     The 
ancient    Belgians,   for    instance,    allowed   not   wines   and 
other  foreign  merchandise   to  be  imported  among  them. 
The  same  rule,  we  are  informed  by  Strabo,  was  practised 
by  the  Nabathaean  Arabians. 

XXI.  It  is  supposed  to  be  generally  agreed  among  man- 
kind, that   the  privileges,  which   any  nation   grants  pro- 
miscuously to  the  subjects  of  foreign  powers  or  countries, 

stood  by  a  brief  explanation  of  the  nature  of  Contracts.  <(  Now  contracts 
are  of  two  kinds,  either  express  or  implied.  Express  contracts  are  openly 
uttered  and  avowed  at  the  time  of  making,  as  to  deliver  an  ox,  or  ten  load 
of  timber,  or  to  pay  a  stated  price  for  certain  goods.  Implied  are  such  as 
reason  and  justice  dictate,  and  which  therefore  the  law  presumes,  that 
every  man  undertakes  to  perform.  As,  if  I  employ  a  person  to  do  any  bus- 
iness for  me,  or  perform  any  work ;  the  law  implies  that  I  undertook,  or 
contracted,  to  pay  him  as  much  as  his  labor  deserves.  If  I  take  up  wares 
from  a  tradesman,  without  any  agreement  of  price,  the  law  concludes, 
that  I  contracted  to  pay  their  real  value.  And  there  is  also  one  species 
of  implied  contracts,  which  runs  through  and  is  annexed  to  all  other  con- 
tracts, conditions,  and  covenants,  viz.  that  if  I  fail  in  my  part  of  the 
agreement,  I  shall  pay  the  other  party  such  damages  as  he  has  sustained 
by  such  my  neglect  or  refusal.  Blackst.  Com.  b.  ii.  c.  30.  p.  442. 


THE   RIGHTS  OF  WAR  AND   PEACE  101 

are  the  common  right  of  all.*  Consequently  the  exclu- 
sion of  any  one  people  from  these  rights  would  be 
considered  as  an  injury  to  that  people.  Thus,  wherever 
foreigners  in  general  are  allowed  to  hunt,  to  fish,  to 
shoot,  to  gather  pearls,  to  succeed  to  property  by  testa- 
ment, to  sell  commodities,  or  to  form  intermarriages,  the 
same  privileges  cannot  be  refused  to  any  particular  peo- 
ple, unless  they  have  by  misconduct  forfeited  their  right. 
On  which  account  the  tribe  of  Benjamin  was  debarred 
from  intermarrying  with  other  tribes. 

XXII.  It  has  sometimes  been  a  subject  of  inquiry 
whether  one  nation  may  lawfully  agree  with  another  to  ex- 
clude all  nations  but  herself  from  purchasing  certain  pro- 
ductions, which  are  the  peculiar  growth  of  her  soil.  An 
agreement  which,  it  is  evident,  may  be  lawfully  made; 
if  the  purchaser  intends  to  supply  other  nations  with 
those  articles  at  a  reasonable  price.  For  it  is  a  matter 
of  indifference  to  other  nations  OF  WHOM  they  purchase, 
provided  they  can  have  a  reasonable  supply  for  their 
wants.  Nor  is  there  any  thing  unlawful  in  allowing  one 
people  an  advantage  over  another  in  this  respect,  particu- 
larly for  a  nation  who  has  taken  another  under  her  pro- 
tection and  incurred  expence  on  that  account.  Now 
such  a  monopoly,  under  the  circumstances  already  men- 
tioned, is  no  way  repugnant  to  the  law  of  nature,  f 

*  There  are  cases  in  which  monopolies,  and  the  exclusive  privileges 
of  trading  companies  are  not  only  allowable  but  absolutely  necessary. 
(<For  there  are,  says  Vattel,  commercial  enterprizes  that  cannot  be  car- 
ried on  without  an  energy  that  requires  considerable  funds,  which  sur- 
pass the  ability  of  individuals.  There  are  others  that  would  soon 
become  ruinous,  were  they  not  conducted  with  great  prudence,  with  one 
regular  spirit,  and  according  to  well  supported  maxims  and  rules. 
These  branches  of  trade  cannot  be  indiscriminately  carried  on  by  indi- 
viduals: companies  are  therefore  formed,  under  the  authority  of  the 
government ;  and  these  companies  cannot  subsist  without  an  exclusive 
privelege.  It  is  therefore  advantageous  to  the  nation  to  grant  them : 
hence  have  arisen  in  different  countries,  those  powerful  companies  that 
carry  on  commerce  with  the  East »— Law  of  Nat.  b.  i.  c.  viii.  sect  97. 
p.  42. 

f  Adam  Smith  in  his  Wealth  of  Nations,  speaking  of  treaties  of  com- 
merce, observes,  that « when  a  nation  binds  itself  by  treaty,  either  to 
permit  the  entry  of  certain  goods  from  one  foreign  country  which  it  pro- 
hibits from  all  others,  or  to  exempt  the  goods  of  one  country  from  duties 
to  which  it  subjects  those  of  all  others,  the  country,  or  at  least  the  mer- 
chants and  manufacturers  of  the  country,  whose  commerce  is  so  fa- 
voured, must  necessarily  derive  great  advantages  from  the  treaty. 
Those  merchants  and  manufacturers  enjoy  a  sort  of  monopolj  in  the 


102  HUGO   GROTIUS 

though  it  may  be  sometimes  for  the  interest  of  the 
community  to  prohibit  it  by  express  laws. 

country,  which  is  so  indulgent  to  them.  That  country  becomes  a 
market  both  more  extensive  and  more  advantageous  for  their  goods: 
more  extensive,  because  the  goods  of  other  nations  being  either  ex- 
cluded or  subjected  to  heavier  duties,  it  takes  off  a  great  quantity  of 
theirs:  more  advantageous,  because  the  merchants  of  the  favoured  coun- 
try, enjoying  a  sort  of  monopoly  there,  will  often  sell  their  goods  for  a 
better  price,  than  if  exposed  to  the  free  competition  of  all  other  nations. » 
— VoL  2.  b.  iv.  ch.  vi 


CHAPTER   III. 

ON  THE  ORIGINAL  ACQUISITION  OF  THINGS,  AND  THE  RIGHT 
OF  PROPERTY  IN  SEAS  AND  RIVERS. 

Specification  of  moveable  property  —  The  difference  between  sover- 
eignty and  property  —  The  right  to  moveables  by  occupancy  may  be 
superseded  by  law — Rivers  may  be  occupied  —  Right  to  seas  —  On 
the  treaties  binding  a  people  not  to  navigate  the  seas  beyond  cer- 
tain bounds  —  Inquiry  into  the  nature  of  the  change  which  a  river, 
changing  its  course,  makes  in  the  adjoining  territories  —  What  de- 
termination is  to  be  made,  where  the  river  has  entirely  changed  its 
channel  —  Sometimes  a  whole  river  may  accrue  to  a  territory  — 
Things  deserted  belong  to  the  first  occupier. 

I.  AMONG  the  means  of  acquiring  property,  Paulus  the 
Lawyer  reckons  one,  which  seems  most  natural,  and  that 
is,  if  by  the  ingenuity  of  art,  or  the  exertions  of  labour 
we  have  given   to    any   production    its    existence   among 
the   works   of   man.     Now   as   nothing   can   naturally  be 
produced,  except    from    some  materials    before    in   exist- 
ence, it  follows  that,  if   those    materials    were    our  own, 
the  possession   of  them    under    any   new   shape,  or  com- 
modity is  only  a  CONTINUATION  of   our   former  property; 
if  they  belonged  to  no  one,  our  possession  comes    under 
the  class  of  title  by  occupancy:  but  if  they  were  another's, 
no  improvement  of  ours   can  by  the  law  of  nature   give 
us  a  right  of  property  therein. 

II.  Among  those  things,  which  belong  to  no  one,  there 
are  two  that  may  become  the  subjects  of  occupancy ;  and 
those  are  jurisdiction,  or  sovereignty  and  property.     For 
jurisdiction  and  property  are  distinct  from  each  other  in 
their  effects.     The  objects    over    which    sovereignty  may 
be  exercised  are  of  a  twofold  description,   embracing   both 
persons  and  things.     But  this  is   not  the  case  with  prop- 
erty, the  right  of  which  can  extend  only  to  the  irrational 
and  inanimate    part  of  the    creation.     Though    it   might 
originally,  for  the  most  part,  be  the    same  act  by  which 
sovereignty  and  property  were  acquired,  yet  they  are  in 
their  nature  distinct.     SOVEREIGNTY,  says  Seneca,  belongs 
to    PRINCES   and    PROPERTY    to    INDIVIDUALS.      The    sover- 
eignty  therefore,    not   only   over   subjects    at   home,  but 

(103) 


104  HUGO   GROTIUS 

\ 

over  those  in  the  prince's  foreign  dominions  passes  with 
the  hereditary  descent  of  the  crown. 

III.  In  places,  where  sovereignty  is  already  established, 
the  right  to  moveables  by   occupancy,  and   indeed  every 
original  right  must  give  way  to  the  superior  sanction  of 
law.     And  what  any  man  before  held  by  any  such  right, 
he   would    afterwards   be    considered    as    holding  by  the 
laws  of  the  country.     For  those  original  rights  were  PER- 
MISSIONS of   the   law   of  nature,  and   not   commands  that 
were   to  be    PERPETUALLY   enforced.      For   the  continued 
establishment  of  such  a  right .  as  that  by  prior  occupancy, 
so  far  from  promoting  the  welfare,  would  operate  to  the 
very  destruction  of  human  society.     Although  it  may  be 
said  by  way  of  objection,  that  the  law  of  nations  seems 
to  admit  of  such  a  right,  yet  we  may  answer  that  if  such 
a  rule  either   is  or  has  been   commonly  received    in  any 
part  of  the  world,  it  has  not  the  force  of  a  general  com- 
pact binding  upon  different  independent  nations ;  but  may 
be  considered  as  one   branch  of    the   civil  law  of  many 
nations,  which  any  state  has   a  right  to    continue,  or  re- 
peal according  to  its  own   pleasure  or  discretion.     There 
are   many   other   things    indeed   which   legal   writers,  in 
treating  of  the  division  and  acquisition  of  property,  con- 
sider as  forming  a  part  of  the  law  of  nations. 

IV.  Rivers  may  be  occupied  by  a  country,  not  includ- 
ing the  stream  above,  nor  that  below  its  own  territories. 
But  the  waters  which  wash  its  lands  form  an  inseparable 
part   of   the  current,    making   its    way   to  the    main  sea. 
For  to  constitute  the  right  to  a  property  in  its  channel,  it 
is    sufficient    that    its    sides,  inclosed    by    the     banks  of 
that  territory  form  its  greatest    part,  and  that  the  river 
itself    compared    with  the  land,  makes    but  a  small  por- 
tion. 

V.  In   the   same    manner,  the   sea   appears   capable  of 
being  made  a  property  by   the   power   possessed    of  the 
shore  on  both  sides   of  it;   although  beyond   those  limits 
it  may  spread   to  a  wide   extent,  which  is  the  case  with 
a  bay,  and  with   a   straight  beyond    each   of   its   outlets 
into  the  main  sea  or  ocean.     But   this   right  of  property 
can  never  take  place  where  the  sea  is  of   such  a  magni- 
tude, as  to  surpass   all  comparison   with  that   portion   of 
the  land   which   it   washes.      And   the   right,  which   one 
people  or  prince  possesses,  may  also  be  shared  by  a  great 
number  of  states,  among  whose  respective  territories  the 
sea  flows.     Thus  rivers   separating   two  powers  may  be 


THE   RIGHTS  OF   WAR   AND   PEACE  105 

occupied  by  both,  to  each  of  whom  their  use  and  advan- 
tages may  be  equal. 

VI.  Instances  may  be  found  of  treaties  by  which  one 
nation  binds  itself  to  another,  not  to  navigate  particular 
seas  beyond  certain  bounds.  Thus  between  the  Egyp- 
tians and  the  Princes  inhabiting  the  borders  of  the  Red 
Sea,  it  was  agreed,  in  ancient  times,  that  the  former 
should  not  enter  that  sea  with  any  ship  of  war,  nor  with 
more  than  one  merchant  ship.  In  the  same  manner,  in 
the  time  of  Cimon,  the  Persians  were  bound  by  a  treaty, 
made  with  the  Athenians,  not  to  sail  with  any  ship  of 
war  between  the  Cyanean  rocks  and  the  Chelidonian 
islands;  a  prohibition,  which,  after  the  battle  of  Salamis, 
restricted  any  Persian  armed  vessel  from  sailing  between 
Phaselis  and  the  above  named  rocks.  In  the  one  year's 
truce  of  the  Peloponnesian  war,  the  Lacedaemonians 
were  prohibited  from  sailing  with  any  ships  of  war  what- 
ever, or  indeed  with  any  other  ships  of  more  than  twenty 
tons  burden.  And  in  the  first  treaty,  which  the  Romans, 
immediately  after  the  expulsion  of  their  kings,  made 
with  the  Carthaginians,  it  was  stipulated  that  neither  the 
Romans,  nor  their  allies  should  sail  beyond  the  pro- 
montory of  Pulchrum,  except  they  were  driven  thither 
by  stress  of  weather,  or  to  avoid  being  captured  by  an 
enemy.  But  in  either  case  they  were  to  take  nothing 
more  than  necessaries,  and  to  depart  before  the  expira- 
tion of  five  days.  And  in  the  second  treaty,  the  Romans 
were  prohibited  from  committing  any  acts  of  piracy,  or 
even  from  trading  beyond  the  promontory  of  Pulchrum, 
Massia  and  Tarseius. 

In  a  treaty  of  peace  between  the  Illyrians  and  Romans, 
the  latter  required  that  they  should  not  pass  beyond  the 
Lissus  with  more  than  two  frigates,  and  those  unarmed. 
In  the  peace  with  Antiochus,  he  was  bound  not  to  sail 
within  the  capes  of  Calycadnius  and  Sarpedon,  except 
with  ships  carrying  tribute,  ambassadors,  or  hostages. 
Now  the  instances  alluded  to  do  not  prove  the  actual  oc- 
cupancy of  the  sea,  or  the  right  of  navigation.  For  it 
may  happen  that  both  individuals  and  nations  may  grant 
as  a  matter  of  favour  or  compact,  not  only  what  they 
have  a  competent  right  to  dispose  of,  but  that  which  is 
the  common  right  of  all  men  as  well  as  of  themselves. 
When  this  happens,  we  may  say  as  Ulpian  did  on  a  like 
occasion,  where  an  estate  had  been  sold  with  a  reserva- 
tion, that  the  purchaser  should  not  fish  for  Tunny  to  the 


106  HUGO   GROTIUS 

predjudice  of  the  seller.  He  observed  that  the  sea  could 
not  be  rendered  subject  to  a  service,  but  still  the 
purchaser  and  those  who  succeeded  to  his  possession, 
were  bound  in  honour  to  observe  that  part  of  the  con- 
tract. 

VII.  Whenever    a   river  has   changed    its   course,    dis- 
putes have  arisen   between   neighboring   states   to  decide 
whether  such   an   alteration    creates   any   change  in  the 
adjoining  territories,  and  to  whom    any    addition  of  land 
occasioned  by  that  change  accrues.     Disputes  which  must 
be  settled  according  to   the   nature   and   manner  of  such 
acquisition.     Writers,  who   have    treated   of   the  division 
of  land,  have  described  it  as  of   a   threefold  nature:  one 
kind  they  name  DIVIDED  and  ASSIGNED  land,  which  Fron- 
tinus  the  Lawyer  calls  LIMITED,  because  it  is  marked  out 
by  artificial  boundaries.     By  land  ASSIGNED,  is  meant  that 
which  has  been  appropriated  to  a  whole  community,  com- 
prehending a  certain  number  of   families;  a  hundred  for 
instance:  from  whence    it  has   derived   that  name.     And 
those  portions  are  called  hundreds.    There  is  another  di- 
vision called  ARCIFINIUM,  which  is  applied  when  the  land 
is  defended  against  an  enemy  by  the  natural  boundaries 
of  rivers    or   mountains.     These   lands   Aggenus  Urbicus 
calls    OCCUPATORY,    being     such    as    have    been    occupied 
either  by  reason  of  their  being  vacant,   or  by  the  power 
of  conquest.     In    the    two   first   kinds   of   lands,  because 
their  extent  and  bounds  are  fixed  and  determined,  though 
a  river  should  change  its  course,  it   occasions  no  change 
of  territory,  and  what  is  added    by   alluvion   will  belong 
to  the  former  occupant. 

In  arcifinious  lands,  where  the  bounds  are  formed  by 
nature,  any  gradual  change  in  the  course  of  the  river 
makes  a  change  also  in  the  boundaries  of  territory,  and 
whatever  accession  is  given  by  the  river  to  one  side,  it 
will  belong  to  the  possessor  of  the  land  on  that  side. 
Because  the  respective  nations  are  supposed  originally  to 
have  taken  possession  of  those  lands,  with  an  intention 
of  making  the  MIDDLE  of  that  river,  as  a  natural  boun- 
dary, the  line  of  separation  between  them.  Thus  Taci- 
tus in  speaking  of  the  Usipians  and  Tencterians,  who 
border  on  the  Cattians,  says,  <(  their  territory  lies  on  the 
banks  of  the  Rhine,  where  that  river,  still  flowing  in  one 
regular  channel,  forms  a  sufficient  boundary." 

VIII.  Decisions  like  those  above  can  only  take  place  in 
instances,  where   the  river  has   not   altered   its  channel. 


THE   RIGHTS   OF   WAR  AND   PEACE  107 

For  a  river,  dividing  territories,  is  not  to  be  considered 
barely  as  so  much  water,  but  as  water  flowing  in  a  PAR- 
TICULAR CHANNEL,  and  inclosed  WITHIN  CERTAIN  BANKS. 
For  which  reason  an  addition,  a  decrease,  or  such  a 
change  of  small  portions,  as  leaves  the  ancient  appear- 
ance, upon  the  whole,  nearly  the  same,  allows  us 
to  consider  the  river  as  still  the  same.  But  if  the 
whole  face  of  the  river  is  changed,  the  case  will  be 
entirely  altered.  For  as  a  river  may  be  entirely  destroyed 
by  the  erection  of  dams  upon  the  higher  parts  of  its 
stream,  or  by  digging  canals,  which  carry  off  its  waters 
in  another  direction :  so  by  the  desertion  of  its  old  chan- 
nel, and  breaking  out  for  itself  another  course,  it  will  not 
continue  to  be  same  river  it  was  before,  but  will  be  com- 
pletely a  new  one.  In  the  same  manner  if  a  river  has 
been  dried  up,  the  middle  of  its  channel  will  remain  as 
the  boundary  between  neighbouring  states,  who  in  taking 
possession  of  the  neighbouring  territory  originally  in- 
tended the  middle  of  such  a  river  to  be  the  line  of  sep- 
aration, and  under  all  changes  to  preserve  the  same  as  a 
permanent  limit.  But  in  doubtful  cases,  the  territo- 
ries bordering  upon  a  river  ought  to  be  considered  as 
arcifinious,  because  nothing  can  be  a  more  apt  mark  of 
distinction  than  those  impassable  bounds  assigned  by  na- 
ture. It  very  seldom  indeed  happens,  that  the  artificial 
or  civil  admeasurements  of  territory  can  be  regulated  by 
such  natural  bounds,  as  they  are,  in  general,  the  effect 
of  original  acquisition,  or  have  been  ceded  by  treaty. 

IX.  Although  in  doubtful  cases,    it  has  been   said  that 
the  territories  on  each  side  of  a  river  are  determined  by 
the  middle  of  the   channel;  yet  it  may  happen,  and  has 
happened,  that  the   sole   right  to  a  river  may  belong  to 
the    territories  on    one    side  of   it.     Because    that   on  the 
opposite  side   was  of  later  occupancy,  and  subsequent  to 
the   possession  of  that   river  by  the  other  power:  or  be- 
cause this  sole  right  may  have  been  so  settled  by  treaty. 

X.  It  is  not  unworthy  of  observation  that  things  which 
have  had  an  owner,  but  have  ceased  to  have  one,  become 
subject  to  the  right  by  original  aquisition.     They  are  sup- 
posed  to   have    been    abandoned   from    the    want   of   an 
owner,  and  therefore  have  returned  to  the  original  state 
of  common  stock.     But  at  the  same   time  it   is  proper  to 
observe,  that  some  times  the  original  acquisition  may  have 
been   made   by  a    people   or   their   sovereign,    in   such  a 
manner  as  to  give  them  or  him  not  only  those    pre-emi- 


io8  HUGO   GROTIUS 

nent  rights  which  constitute  prerogative,  but  also  the  full 
title  of  property. 

And  this  property  again  may  be  divided  into  smaller 
grants,  and  those  again  subdivided  into  other  portions, 
to  be  held  as  dependent  upon  the  original  grantor,  the 
Sovereign,  or  the  Lord.  Though  the  land  may  not  be 
held  by  base  service,  or  vassalage,  yet  it  is  possessed  by 
some  conditional  tenure.  For  things  are  occupied  by 
many  kinds  of  right ;  among  which  may  be  reckoned  the 
right  of  a  person  who  expects  property  to  be  left  to  him 
under  the  condition  of  a  trust.  Seneca  says,  that  an 
owner's  being  debarred  from  selling  his  lands,  committing 
waste  upon  them,  or  even  making  improvements,  is  not 
to  be  taken  as  a  proof  that  the  property  is  not  his.  For 
that  is  a  man's  own,  which  he  holds  under  any  certain 
conditions.  Since  then  property  distributed  in  the  manner 
above  named  is  held  of  the  sovereign,  or  of  some  inter- 
mediate Lord,  who  himself  is  tenant  of  the  sovereign,  it 
follows  that  any  thing  which  wants  an  owner  does  not 
become  the  property  of  him,  who  can  first  seize  it,  but 
reverts  to  the  state  or  to  the  sovereign. 


WAR 

By  Gari  Mclchers  —  From  a  panel  fainting  in  Library  of 
Congress. 


CHAPTER   IV. 

TITLE  TO  DESERT  LANDS  BY   OCCUPANCY,  POSSESSION,  AND 
PRESCRIPTION. 

Why  Usucaption  or  Prescription  cannot  subsist  between  independent 
States,  and  Sovereigns  —  Long  possession  alledged  as  a  ground  of 
right — Inquiry  into  the  intentions  of  men,  which  are  not  to  be 
judged  of  by  words  alone  —  Intention  to  be  judged  of  by  acts  — 
Intentions  also  to  be  judged  of  by  omissions  —  How  far  length  of 
time,  silence,  and  non-possession,  may  confirm  the  conjecture  of 
an  abandoned  right  —  Time  immemorial  generally  thought  to  bar 
any  claim  —  What  constitutes  time  immemorial  —  Objections  to  a 
presumed  desertion  of  property,  considered  without  any  conjecture, 
time  immemorial  appears  to  transfer  and  constitute  a  property  — 
Inquiry  whether  persons  yet  unborn  may  thus  be  deprived  of  their 
right — Rules  of  civil  law  respecting  Usucaption  and  Prescription 
as  applied  to  the  case  of  Sovereign  Princes,  explained. 

I.  A  GREAT  difficulty  arises  here  respecting  the  right 
to  property  by  uninterrupted  possession  for  any  certain 
time.  For  though  time  is  the  great  agent,  by  whose 
motion  all  legal  concerns  and  rights  may  be  measured 
and  determined,  yet  it  has  no  effectual  power  of  itself 
to  create  an  express  title  to  any  property.  Now  those 
rights  were  introduced  by  the  civil  law;  and  it  is  not 
their  long  continuance,  but  the  express  provisions  of  the 
municipal  law,  which  gives  them  their  validity.  They 
are  of  no  force  therefore,  in  the  opinion  of  Vasquez, 
between  two  independent  nations  or  sovereigns,  or  be- 
tween a  free  nation  and  a  sovereign:  between  a  sovereign 
and  an  individual  who  is  not  his  subject,  or  between 
two  subjects  belonging  to  different  kings  or  nations. 
Which  indeed  seems  true;  and  is  actually  the  case;  for 
such  points  relating  to  persons  and  things,  are  not  left 
to  the  law  of  nature,  but  are  settled  by  the  respective 
laws  of  each  country.  As  the  unqualified  admission  of 
this  principle  would  lead  to  great  inconvenience,  and 
prevent  the  disputes  of  kings  and  nations  respecting  the 
bounds  of  territory  from  ever  being  adjusted;  in  order 
to  eradicate  the  seeds  of  perpetual  warfare  and  confusion, 
so  repugnant  to  the  interests  and  feelings  of  every  people ; 
the  settlement  of  such  boundaries  is  not  left  to  the  claims 

(109) 


no  HUGO  GROTIUS 

of  prescriptive  right ;  but  the  territories  of  each  contend- 
ing party  are,  in  general,  expressly  defined  by  certain 
treaties. 

II.  To  disturb  any  one    in  the   actual   and  long  pos- 
session of  territory,    has   in  all   ages   been   considered  as 
repugnant  to  the  general   interests   and  feelings  of  man- 
kind.     For  we  find  in  holy  writ,  that  when  the  King  of 
the  Ammonites  demanded  the  lands  situated  between  the 
rivers  Arnon  and  Jabok,    and   those   extending  from  the 
deserts    of   Arabia   to    the    Jordan,    Jepthah    opposed  his 
pretentious  by  proving   his   own  possession   of  the   same 
for  three   hundred  years,  and   asked  why  he  and  his  an- 
cestors had  for  so  long  a  period  neglected  to  make  their 
claim.     And   the    Lacedaemonians,    we    are  informed   by 
Isocrates,  laid  it  down  for  a  certain  rule  admitted  among 
all  nations,  that  the  right    to    public  territory  as  well  as 
to  private  property   was   so  firmly  established  by  length 
of  time,  that  it  could  not  be    disturbed;   and  upon    this 
ground  they  rejected  the    claim  of  those   who  demanded 
the  restoration  of  Messena. 

Resting  upon  a  right  like  this,  Philip  the  Second  was 
induced  to  declare  to  Titus  Quintius,  <(  that  he  would  re- 
store the  dominions  which  he  had  subdued  himself,  but 
would  upon  no  consideration  give  up  the  possessions 
which  he  had  derived  from  his  ancestors  by  a  just  and 
hereditary  title.  Sulpitius,  speaking  against  Antiochus, 
proved  how  unjust  it  was  in  him  to  pretend,  that  be- 
cause the  Greek  Nations  in  Asia  had  once  been  under 
the  subjection  of  his  forefathers,  he  had  a  right  to  revive 
those  claims,  and  to  reduce  them  again  to  a  state  of  serv- 
itude. And  upon  this  subject  two  historians,  Tacitus  and 
Diodorus  may  be  referred  to;  the  former  of  whom  calls 
such  obsolete  pretentious,  empty  talking,  and  the  latter 
treats  them  as  idle  tales  and  fables.  With  these  opinions 
Cicero,  in  his  2nd  book  of  Offices,  agrees,  asking  <(  what , 
justice  there  can  be  in  depriving  an  owner  of  the  land, 
which  he  has  for  many  ages  quietly  possessed  ? w 

III.  Can  it  be  said,  in  order  to  justify  the  disturbance 
of    long    enjoyed    possessions,    that    the    rightful    owner 
INTENDED  to  assert  his  claim,  when    he  never  manifested 
such  Intention  by   any    outward  visible   act  ?    The  effect 
of  right  which  depends  upon  a  man's  intentions  can  never 
follow  from  a  bare  conjecture  of   his  will,  unless  he  has 
declared  and  proved  it  by  some   express  and  visible  act. 
For     actions    being  the   only    evidence     of    intentions, 


THE  RIGHTS  OF  WAR  AND  PEACE      in 

intentions  can  never  of  themselves  alone  without  such  acts 
be  the  object  of  human  laws.  No  conjectures  indeed 
respecting  the  acts  of  the  mind  can  be  reduced  to  mathe- 
matical certainty,  but  only  to  the  evidence  of  probabil- 
ity at  the  utmost.  For  men  by  their  words  may 
express  intentions  different  from  their  real  ones,  and  by 
their  acts  counterfeit  intentions  which  they  have  not. 
The  nature  of  human  society,  however,  requires  that  all 
acts  of  the  mind,  when  sufficiently  indicated,  should  be 
followed  by  their  due  effects.  Therefore  the  intention, 
which  has  been  sufficiently  indicated,  is  taken  for 
granted  against  him  who  gave  such  indication. 

IV.  But  to  proceed  to  proofs  derived  from  actions.     A 
thing  is  understood  to  be  abandoned,  when  it  is  cast  away; 
except  it  be  under  particular  circumstances,  as  throwing 
goods   overboard  in  a  storm  to  lighten  a  ship,  where  the 
owner  is  not  supposed  to  have  abandoned  all  intention  of 
recovery,  should  it  ever  be  in  his  power.     Again,  by  giv- 
ing up  or  cancelling  a  promissory  note,  a  debt  is  deemed 
to   be    discharged.     Paulus   the    Lawyer,  says,  a  right    to 
property  may  be  renounced  not  only  by  words,  but  also  by 
actions,  or  any  other  indication  of  the  will.     Thus,  if  an 
owner  knowingly  make  a  contract  with  any  one  who  is  in 
possession,  treating    him  as  if  he  were   the    rightful  pro- 
prietor, he  is  naturally  supposed  to  have  relinquished  his 
own  pretensions.     Nor  is  there  any  reason,  why  the  same 
rule    may  not  take  place  between   sovereign  princes,  and 
independent  states,  as  between  individuals.     In  the  same 
manner,   a    Lord  by  granting    certain    privileges    to    his 
Vassal,  which  he  could  not  legally  enjoy  without  a  release 
from  his  former  obligations,  was  supposed  by  such  act  to 
have  given  him  his  freedom.     A  power  derived  not  from 
the    civil    law  only,  but    from   the    law  of   nature,  which 
allows  every  man  to  relinquish  what  is  his  own,  and  from 
a  natural  presumption  that  a  person  designed  to  do  the 
act  which  he   has   given  manifest  proofs  of  his  intention 
to  do.     In  this  sense,  Ulpian  may  be  rightly  understood, 
where  he  says,  that  ACCEPTILATION  or  the  verbal  discharge 
of  a  debt  is  founded  upon  the  law  of  nations. 

V.  Even  omissions,  taking  all  proper  circumstances  into 
consideration,   come    under   the    cognizance    of    the   law. 
Thus  the  person,  who  knowing  of  an  act,  and  being  pres- 
ent at  the   commission   of   it,   passes   it   over   in   silence, 
seems  to  give  his  consent  to  it ;  this  was  admitted  by  the 
Mosaic  Law.     Unless   indeed  it  can    be    shewn    that    the 


ii2  HUGO   GROTIUS 

same  person  was  hindered  from  speaking  either  by  fear 
or  some  other  pressing  circumstance.  Thus  a  thing  is 
accounted  as  lost  when  all  hope  of  recovering  it  is  given 
up;  as  for  instance,  if  a  tame  animal,  which  was  in  our 
possession,  be  seized  and  carried  off  by  a  wild  beast. 
Goods  too  lost  by  shipwreck,  Ulpian  says,  cease  to  be  con- 
sidered as  our  own,  not  immediately,  but  when  they  are 
lost  beyond  all  possibility  of  being  reclaimed,  and  when 
no  proofs  of  the  owner's  intention  to  reclaim  them  can 
be  discovered. 

Now  the  case  is  altered,  if  persons  were  sent  to  inquire 
after  the  lost  goods,  or  property,  and  a  reward  was 
promised  to  the  finder.  But  if  a  person  knows  his  prop- 
erty to  be  in  the  possession  of  another,  and  allows  it  to 
remain  so  for  a  length  of  time,  without  asserting  his 
claim,  unless  there  appear  sufficient  reasons  for  his  silence, 
he  is  construed  to  have  entirely  abandoned  all  pretentions 
to  the  same.  And  to  the  same  purpose  he  has  said  else- 
where, that  a  house  is  looked  upon  to  be  abandoned  on 
account  of  the  long  silence  of  the  proprietor. 

The  Emperor  Antoninus  Pius,  in  one  of  his  rescripts, 
said  there  was  but  little  justice  in  claiming  interest  upon 
money  after  a  long  period ;  for  the  length  of  time  elapsed 
was  an  indication  that  the  debtor  had  been  excused  from 
payment,  from  some  motive  of  kindness. 

There  appears  something  similar  to  this  in  the  nature  of 
custom.  For  apart  from  the  authority  of  civil  laws,  which 
regulate  the  time  and  manner  of  custom,  and  its  intro- 
duction, it  may  arise  from  the  indulgence  of  a  sovereign 
to  a  conquered  people.  But  the  length  of  time  from 
which  custom  derives  the  force  of  right,  is  not  defined, 
but  left  to  the  arbitrary  decision  of  what  is  sufficient  to 
indicate  general  consent.  But  for  silence  to  be  taken  as 
a  valid  presumption  that  property  is  deserted,  two  things 
are  requisite:  it  must  be  a  silence  with  a  knowledge  of 
the  fact,  and  with  a  perfect  freedom  of  will  in  the  person 
concerned.  For  a  silence  founded  in  ignorance  can  have 
no  weight ;  and  where  any  other  reason  appears,  the  pre- 
sumption of  free  consent  must  fail. 

VI.  Although  the  two  requisites  already  named  may  be 
produced,  yet  other  reasons  have  their  weight;  among 
which  length  of  time  is  not  the  least  important.  For  in 
the  first  place,  it  can  scarcely  happen,  that  for  a  great 
length  of  time  a  thing  belonging  to  any  one  should  not 
some  way  or  other  come  to  his  knowledge,  as  time  might 


THE   RIGHTS   OF   WAR   AND   PEACE  113 

supply  many  opportunities.  Even  if  the  civil  law  did  not 
interpose  to  bar  remote  pretensions,  the  very  nature  of 
things  would  shew  the  reasonableness  of  a  shorter  period 
of  limitation  being  allowed  to  present  than  to  absent 
claimants.  If  impressions  of  fear  were  pleaded  by  any 
one  in  excuse,  yet  their  influence  would  not  be  of  per- 
petual duration,  and  length  of  time  would  unfold  various 
means  of  security  against  such  fears,  either  from  resources 
within  himself,  or  from  the  assistance  of  others.  Escaping 
beyond  the  reach  of  him  he  dreaded,  he  might  protest 
against  his  oppression,  by  appealing  to  proper  judges  and 
arbitrators. 

VII.  Now  as  time  immemorial,  considered   in   a  moral 
light,  seems  to  have  no  bounds,  silence  for  such  a  length 
of  time   appears    sufficient   to   establish   the    presumption 
that  all  claim  to  a  thing  is  abandoned,  unless  the  strongest 
proofs  to  the  contrary  can  be  produced.     The  most  able 
Lawyers  have  properly  observed,  that  time  according  to 
the  memory    of    man    is    not   an   hundred   years,  though 
probably  it  may  not  fall  far  short  of  that  space.      For  a 
hundred  years  are  the  term   beyond  which  human  exist- 
ence   seldom    reaches;    a    space,   which    in   general   com- 
pletes three  ages  or    generations   of   men.     The  Romans 
made  this  objection  to  Antiochus,  that  he  claimed  cities, 
which  neither  he  himself,  his  father,  nor  his  grandfather 
had  ever  possessed. 

VIII.  From  the  natural  affection  which   all  men  have 
for  themselves,  and  their  property,  an  objection  may  be 
taken  against  the  presumption  of   any   one's   abandoning 
a  thing  which  belongs  to  him,  and  consequently  negative 
acts,  even   though    confirmed   by  a  long  period  of  time, 
are  not  sufficient  to   establish    the   above  named    conjec- 
ture. 

Now  considering  the  great  importance  deservedly 
attached  to  the  settlement  of  CROWNS,  all  conjectures 
favourable  to  the  possessors  ought  to  be  allowed.  For  if 
Aratus  of  Sicyon  thought  it  a  hard  case,  that  PRIVATE 
possessions  of  fifty  years'  standing  should  be  disturbed, 
how  much  weightier  is  that  maxim  of  Augustus,  that  it 
is  the  character  of  a  good  man  and  a  good  subject  to 
wish  for  no  change  in  the  present  government,  and,  IN 

THE     WORDS,      WHICH      THUCYDIDES      HAS      ASSIGNED      TO      AL- 

CIBIADES,  to  support  the  constitution,  under  which  he  has 
been  born  ?  But  if  no  such  rules  in  favour  of  possession 
could  be  adduced,  yet  a  more  weighty  objection  might 


ii4  HUGO   GROTIUS 

be  found  against  the  presumption,  drawn  from  the  in- 
clination of  every  one  to  preserve  his  own  right,  which 
is  the  improbability  of  one  man's  allowing  another  to 
usurp  his  property  for  any  length  of  time,  without  de- 
claring and  asserting  his  own  right. 

IX.  Perhaps  it  may  reasonably  be  said,  that  this   mat- 
ter does  not  rest  upon  presumption  only,  but  that  it  is  a 
rule,   introduced   by   the   voluntary   law   of  Nations,  that 
uninterrupted    possession,   against    which    no    claim    has 
been  asserted,  will  entirely  transfer  such  property  to  the 
actual  possessor.     For   it    is   most   likely  that  all  nations 
by   consent   gave    their   sanction   to    such    a   practice,   as 
conducive    to    their    common    peace.      The  term  uninter- 
rupted possession  therefore  has  been  very  properly  used 
to    signify,   as    Sulpitius   says    in    Livy,    (<  that  which  has 
been  held  by  one  uniform  tenour  of  right,  without  inter- 
mission. *     Or  as  the  same  author,  in  another  place,  calls 
it,  <(  perpetual  possession,  that  has   never   been   called  in 
question.*     For   a  transitory   possession   creates  no  title. 
And   it   was   this   exception   which  the  Numidians  urged 
against   the    Carthaginians,  alleging  that   as   opportunity 
offered,  sometimes  the  Kings   of   the    Numidians  had  ap- 
propriated to  themselves  the  disputed  possessions,   which 
had    always    remained    in    the    hands    of     the     stronger 
party. 

X.  But  here  another  question,  and  that  of  considerable 
difficulty,    arises,    which   is,    to    decide,  whether,  by   this 
desertion,  persons  yet  unborn  may  be  deprived  of  their 
rights.     If  we  maintain  that  they  MAY  NOT,  the   rule    al- 
ready established  would  be  of  no   avail  towards   settling 
the  tranquillity  of  kingdoms,  and   security   of   property. 
For  in  most  things  some  thing  is  due  to  the  interests  of 
posterity.     But  if  we  affirm  that  they  MAY,  it  then  seems 
wonderful    that    silence    should   prejudice   the    rights    of 
those,  who  were   unable   to   speak,  before   they  had   any 
existence,  and  that  the  act  of   OTHERS  should  operate  to 
their  injury.     To   clear  up   this   point,  we  must  observe 
that  no  rights  can  belong  to  a  person  before  he  has  any 
existence,  as,  in  the  language  of  the   schools,  there   can 
be    no    accident    without    a   substance.     Wherefore    if    a 
Prince,  from  urgent  motives  of   policy,  and  for   the   ad- 
vantage of  his  own  native  dominions,  and  subjects,  should 
decline   to   accept   an   additional    sovereignty,  or  for  the 
same   reasons,  should  relinquish  that,  which   he   had   al- 
ready accepted,  he  would   not   be  charged  with  injuring 


THE   RIGHTS   OF   WAR   AND   PEACE  115 

his  heirs  and  successors,  then  unborn,  who  could  have  no 
rights  before  they  had  a  natural  existence. 

Now  as  a  sovereign  may  EXPRESSLY  declare  a  change 
of  his  will  respecting  such  dominions,  so  that  change 
may.  in  certain  cases,  be  implied  without  such  declara- 
tion. 

In  consequence  of  such  a  change  either  expressed  or 
implied,  before  the  rights  of  heirs  and  successors  can  be 
supposed  to  have  any  existence,  the  possession  may  be 
considered  as  entirely  abandoned.  The  case  here  has 
been  considered  according  to  the  LAW  OF  NATURE  :  for  the 
civil  law,  among  other  fictions,  introduced  that  of  the 
law's  personating  those,  who  are  not  yet  in  being,  and 
so  preventing  any  occupancy  from  taking  place  to  their 
prejudice;  a  regulation  of  the  law  established  upon  no 
slight  grounds  in  order  to  preserve  estates  in  families, 
although  every  means  of  PERPETUATING  property  to  indi- 
viduals, which  prevents  its  transfer  from  hand  to  hand, 
may  in  some  measure  be  detrimental  to  the  public  in- 
terest. From  whence  it  is  a  received  opinion,  that  length 
of  time  will  give  a  property  in  those  fees,  which  were 
originally  conveyed,  not  by  right  of  succession,  but  by 
virtue  of  primitive  investiture.  Covarruvias,  a  lawyer  of 
great  judgment,  supports  this  opinion  with  the  strongest 
arguments  in  favour  of  primogeniture,  and  applies  it  to 
estates  left  in  trust.  For  nothing  can  prevent  the  civil 
law  from  instituting  a  right,  which,  though  it  cannot  be 
lawfully  alienated  by  the  act  of  one  party  without  con- 
sent of  the  other,  yet,  to  avoid  uncertainty  in  the  tenure 
of  present  proprietors,  may  be  lost  by  neglect  of  claim 
for  a  length  of  time.  Still  the  parties  thus  deprived  may 
maintain  a  personal  action  against  those,  or  their  heirs, 
through  whose  neglect  their  right  has  been  forfeited. 

XL  It  is  an  inquiry  of  importance  whether  the  law  of 
usucaption  and  prescription,  if  it  prevail  in  a  prince's 
dominions,  can  be  applied  to  the  tenure  of  the  crown, 
and  all  its  prerogatives.  Many  legal  writers,  who  have 
treated  of  the  nature  of  sovereign  power  according  to  the 
principles  of  the  Roman  civil  law,  seem  to  affirm  that  it 
may  be  so  applied.  But  this  is  an  opinion  to  which  we 
cannot  accede  in  its  full  extent.  For  to  make  a  law 
binding  upon  any  one,  it  is  requisite  that  the  legislator 
should  possess  both  power  and  will.  A  legislator  is  not 
bound  by  his  law,  as  by  the  irrevocable  and  unchange- 
able controul  of  a  superior.  But  occasions  may  arise  that 


ii6  HUGO   GROTIUS 

will  demand  an  alteration  or  even  a  repeal  of  the  law 
which  he  has  made.  Yet  a  legislator  may  be  bound  by 
his  own  law,  not  directly  as  a  legislator,  but  as  an  indi- 
vidual forming  part  of  the  community:  and  that  too 
according  to  natural  equity,  which  requires  that  all  the 
component  parts  should  bear  a  reference  to  the  whole. 
We  find  in  holy  writ,  this  rule  observed  by  Saul  in  the 
beginning  of  his  reign. 

Now  that  rule  does  not  take  place  here.  For  we  are 
considering  the  lawgiver,  not  as  a  part  but  as  the  REP- 
RESENTATIVE and  SOVEREIGN  of  the  whole  community.  Nor 
indeed  can  any  such  intention  in  the  lawgiver  be  pre- 
sumed to  have  existed.  For  legislators  are  not  supposed 
to  comprehend  themselves  within  the  rule  of  the  law, 
except  where  the  nature  and  subject  of  it  are  general. 
But  sovereignty  is  not  to  be  compared  with  other  things; 
it  so  far  surpasses  them  in  the  nobleness  of  its  end,  and 
the  dignity  of  its  nature.  Nor  is  any  civil  law  to  be 
found  which  either  does,  or  designs  to  comprehend  sov- 
ereign power  within  the  rules  of  prescription. 


CHAPTER    IX.* 
IN  WHAT  CASES  JURISDICTION  AND  PROPERTY  CEASE. 

Jurisdiction  and  property  cease,  when  the  family  of  the  owner  has 
become  extinct — In  what  manner  the  rights  of  a  people  may  be- 
come extinct  —  A  people  becomes  extinct  when  its  essential  parts 
are  destroyed — A  people  does  not  become  extinct  by  emigration  — 
The  existence  of  separate  states  not  destroyed  by  a  federal  union. 

I.  and  II.  AFTER  the  preceding  inquiries  into  the  man- 
ner in  which  private  property  as  well  as  sovereign  power 
may  be  acquired  and  transferred,  the  manner,  in  which 
they  cease,  naturally  comes  next  under  consideration.  It 
has  been  shewn  before  that  the  right  to  property  may  be 
lost  by  neglect ;  for  property  can  continue  no  longer  than 
while  the  will  of  ownership  continues.  There  is  also  an- 
other manner  in  which  property  may  cease  to  exist,  with- 
out any  express  or  implied  alienation:  and  that  is  where 
the  family  either  of  a  sovereign,  or  an  owner,  becomes 
extinct,  a  contingency  for  which  provision  must  be  made 
somewhat  similar  to  a  succession  to  the  property  of  one 
who  dies  intestate.  Wherefore  if  any  one  die,  with- 
out any  declaration  of  his  will,  and  have  no  relations  by 
blood,  all  the  right,  which  he  had,  becomes  extinct,  and 
reverts,  if  a  sovereign,  to  the  hands  of  the  nation,  except 
where  express  provisions  of  law  have  been  made  to  the 
contrary. 

III.  The  same  mode  of  reasoning  applies  to  a  nation. 
Isocrates,  and  after  him  the  Emperor  Julian,  has  said  that 
states  are  immortal,  or  may  be  so.  For  a  people  is  one 
of  that  kind  of  bodies  which  are  formed  of  distinct 
parts,  following  each  other  in  regular  succession,  and 
supplying  the  place  of  the  deceased.  This  body  goes 
under  one  name,  forming,  as  Plutarch  says,  one  constitu- 

*  The  translation  proceeds  from  the  fourth  to  the  ninth  Chapter  of 
the  Second  book  of  the  original.  The  intermediate  chapters,  being 
chiefly  a  repetition  of  the  author's  former  arguments,  respecting  the 
rights  of  seas  and  rivers,  and  other  kinds  of  dominions;  and  that 
relating  to  the  rights  of  persons,  being  so  fully  treated  in  the  first 
volume  of  Judge  Blackstone's  Commentaries,  it  seemed  unnecessary 
to  give  them  in  the  present  work. — TRANSLATOR. 

("7) 


n8  HUGO   GROTIUS 

tion;  or,  in  the  language  of  Pauhis  the  Lawyer,  one 
spirit.  Now  the  spirit  or  constitution  in  a  people  is  the 
full  and  perfect  harmony  of  civil  life,  from  which  ema- 
nates the  sovereign  power,  the  very  soul  of  all  govern- 
ment, and,  as  Seneca  says,  the  vital  breath  which  so  many 
thousands  draw. 

These  artificial  bodies  bear  a  close  resemblance  to  the 
natural  body,  which,  notwithstanding  the  alteration  of  its 
component  particles,  loses  not  its  identity,  so  long  as  the 
general  form  remains.  And  therefore  in  the  passage  of 
Seneca,  where  he  says,  that  no  one  is  the  same  in  his 
old  age  that  he  was  in  his  youth,  he  means  only  as  to 
natural  substance.  In  the  same  manner  Heraclitus,  as 
cited  by  Plato  in  Cratylus,  and  Seneca  in  the  place 
already  quoted,  has  said,  that  we  cannot  descend  TWICE 
into  the  same  river.  But  Seneca  afterwards  corrects 
himself,  adding,  that  the  river  retains  its  name,  though 
the  watery  particles  of  which  it  is  composed  are  perpet- 
ually changing.  So  Aristotle,  too,  in  comparing  nations 
to  rivers,  has  said  that  the  rivers  are  always  called  by 
the  same  name,  though  their  several  parts  are  fluctuat- 
ing every  moment.  Nor  is  it  the  name  alone  which  con- 
tinues, but  that  principle  also  which  Conon  calls  the 
constitutional  system  of  the  body,  and  Philo  the  spirit, 
that  holds  it  together.  So  that  a  people,  as  Alphenus 
and  Plutarch,  in  speaking  of  the  late,  but  unerring  ap- 
proach of  divine  vengeance,  maintain,  though  not  one  of 
its  members  of  a  former  period  be  now  living,  is  the 
same  at  present  that  it  was  a  hundred  years  ago,  as  long 
as  the  spirit,  which  first  framed  and  afterwards  kept  the 
body  together,  preserves  its  identity. 

Hence  has  originated  the  custom,  in  addressing  a  peo- 
ple, of  ascribing  to  them,  who  are  now  living,  what  hap- 
pened to  the  same  people  many  ages  before;  as  may  be 
seen  both  in  profane  historians,  and  in  the  books  of  holy 
writ.  So  in  Tacitus,  Antony  the  First  serving  under 
Vespasian,  reminds  the  soldiers  of  the  third  legion  of 
what  they  had  done  in  former  times,  how  under  Mark 
Antony  they  had  beaten  the  Parthians,  and  under  Cor- 
bulo  the  Armenians.  There  was  more  of  prejudice,  there- 
fore, than  truth  in  the  reproach,  which  Piso  cast  upon 
the  Athenians  of  his  own  time,  refusing  to  consider  them 
as  Athenians  since  they  had  become  extinct  by  so  many 
disasters,  and  were  nothing  more  than  a  base  mixture  of 
all  nations  of  the  earth.  We  say  there  was  more  of 


THE   RIGHTS   OF   WAR  AND   PEACE  119 

prejudice  than  truth  in  this  reproach.  For  though  such 
a  mixture  might  diminish  the  dignity,  it  could  not  de- 
stroy the  existence  of  a  people.  Nor  was  he  himself 
ignorant  of  this.  For  he  reproaches  the  Athenians  of 
his  own  day  with  their  feeble  efforts  in  former  times 
against  Philip  of  Macedon,  and  their  ingratitude  to  their 
best  friends.  Now  as  a  change  of  its  component  parts 
cannot  destroy  the  identity  of  a  people,  not  even  for  a 
thousand  years  or  more ;  so  neither  can  it  be  denied  that 
a  people  may  lose  its  existence  in  two  ways;  either  by 
the  extinction  of  all  its  members,  or  by  the  extinction 
of  its  form  and  spirit. 

IV.  A  body  is   said   to   die,  when   its   essential  parts, 
and  necessary  form  of  subsistence  are  destroyed.     To  the 
former   case    may   be    referred    the    instance   of    nations 
swallowed   up   by  the    sea,  as    Plato   relates,    and    others 
whom  Tertullian  mentions:  or  if  a  people  should  be  de- 
stroyed   by    an    earthquake,    of    which    there    are   many 
instances  in  history,  or  should  destroy  themselves,  as  the 
Sidonians  and  Saguntines  did.     We  are  informed  by  Pliny, 
that  in  ancient  Latium,  fifty-three  nations  were  destroyed 
without  a  single  trace  of  them  remaining. 

But  what,  it  may  be  said  will  be  the  case,  if  out  of 
such  a  nation  so  few  remain  that  they  cannot  form  a 
people  ?  They  will  then  retain  that  property,  which  they 
had  before  as  private  persons,  but  not  in  a  public  ca- 
pacity. The  same  is  the  case  with  every  community. 

V.  A  people   loses   its   form,  by  losing  all  or  some  of 
those  rights,  which  it  had  in  common;  and  this  happens, 
either  when  every  individual  is  reduced  to  slavery,  as  the 
Mycenaeans,  who   were  sold   by  the  Argives;    the    Olyn- 
thians   by  Philip,    the    Thebans   by   Alexander,    and    the 
Brutians,  made  public  slaves  by  the   Romans:  Or  when, 
though   they  retain   their  personal   liberty,   they  are   de- 
prived of  the  rights  of  sovereignty.       Thus  Livy  informs 
us  respecting  Capua,  that  the  Romans  determined,  though 
it  might  be  inhabited  as  a  city,  that  there  should  be  no 
municipal  body,  no  senate,  no  public  council,  no  magis- 
trates,   but   that   deprived   of  political    deliberation,    and 
sovereign  authority,  the  inhabitants   should  be  considered 
as  a  multitude;  subject  to  the  jurisdiction  of   a  Praefect 
sent   from    Rome.     Therefore   Cicero,  in  his  first  speech 
against  Rullus,  says  that  there  was  no  image  of  a  repub- 
lic left  at  Capua.     The  same  may  be  said  of  nations  re- 
duced to  the  form  of  Provinces,  and  of  those  subjugated 


120  HUGO   GROTIUS 

by  another  power;  as  Byzantium  was  to  Perinthus,  by 
the  Emperor  Severus,  and  Antioch  to  Laodicea,  by 
Theodosius. 

VI.  But  if  a  nation  should  emigrate,  either  spontane- 
ously, on  account  of  scarcity  or  any  other  calamity,  or  if 
by  compulsion,  which  was  the  case  with  the  people  of 
Carthage  in  the  third  Punic  war,  while  she  retains  her 
form,  she  does  not  cease  to  be  a  people;  and  still  less 
so,  if  only  the  walls  of  her  cities  be  destroyed,  and  there- 
fore when  the  Lacedaemonians  refused  to  admit  the  Mes- 
senians  to  swear  to  the  peace  of  Greece,  because  the 
walls  of  their  city  were  destroyed,  it  was  carried  against 
them  in  the  General  Assembly  of  the  Allies. 

Nor  does  it  make  any  difference  in  the  argument, 
whatever  the  form  of  government  may  be,  whether  regal, 
aristocratical,  or  democratical.  The  Roman  people  for 
instance  was  the  same,  whether  under  kings,  consuls,  or 
emperors.  Even  indeed  under  the  most  absolute  form, 
the  people  is  the  same  that  it  was  in  its  independent 
state,  while  the  king  governs  it  as  head  of  that  people, 
and  not  of  any  other.  For  the  sovereignty  which  resides 
in  the  king  as  the  head,  resides  in  the  people  likewise 
as  the  body  of  which  he  is  the  head;  and  therefore  in  an 
elective  government,  if  the  king  or  the  royal  family 
should  become  extinct,  the  rights  of  sovereignty,  as  it 
has  been  already  shewn,  would  revert  to  the  people. 

Nor  is  this  argument  overthrown  by  the  objection 
drawn  from  Aristotle,  who  says  that,  if  the  form  of 
government  is  changed,  the  state  no  longer  continues  to 
be  the  same,  as  the  harmony  of  a  piece  of  music  is  en- 
tirely changed  by  a  transition  from  the  Doric  to  the 
Phrygian  measure. 

Now  it  is  to  be  observed,  that  an  artificial  system  may 
possess  many  different  forms,  as  in  an  army  under  one 
supreme  commander  there  are  many  subordinate  parts, 
and  inferior  powers,  while  in  the  operations  of  the  field 
it  appears  but  as  one  body.  In  the  same  manner,  the 
union  of  the  legislative  and  executive  powers  in  a  state 
gives  it  the  appearance  of  one  form,  while  the  distinc- 
tion between  subject  and  sovereign,  and  their  still  mutual 
relation  give  it  another.  The  executive  power  is  the 
politician's  concern;  the  judicial,  the  lawyer's.  Nor  did 
this  escape  the  notice  of  Aristotle.  For  he  says  it 
belongs  to  a  science  different  from  that  of  politics  to 
determine  whether,  under  a  change  in  the  form  of  gov- 


THE  RIGHTS  OF   WAR  AND   PEACE  121 

eminent,  the  debts  contracted  under  the  old  system 
ought  to  be  discharged  by  the  members  of  the  new. 
He  does  this,  to  avoid  the  fault  which  he  blames  in 
many  other  writers,  of  making  digressions  from  one 
subject  to  another. 

It  is  evident  that  a  state,  which  from  a  commonwealth 
has  become  a  regal  government,  is  answerable  for  the 
debts  incurred  before  that  change.  For  it  is  the  same 
people,  possessing  all  the  same  rights,  and  powers,  which 
are  now  exercised  in  a  different  manner,  being  no  longer 
vested  in  the  body,  but  in  the  head.  This  furnishes  a 
ready  answer  to  a  question  some  times  asked,  which  is, 
what  place  in  general  assemblies  of  different  states,  ought 
to  be  assigned  to  a  sovereign,  to  whom  the  people  of  a 
commonwealth  have  transferred  all  their  power?  Un- 
doubtedly the  same  place  which  that  people  or  their 
representatives  had  occupied  before  in  such  councils. 
Thus  in  the  Amphictyonic  council,  Philip  of  Macedon 
succeeded  to  the  place  of  the  Phocensians.  So,  on  the 
other  hand,  the  people  of  a  commonwealth  occupy  the 
place  assigned  to  sovereigns. 

VIII.*  Whenever  two  nations  become  united,  their 
rights,  as  distinct  states,  will  not  be  lost,  but  will  be 
communicated  to  each  other.  Thus  the  rights  of  the 
Albans  in  the  first  place,  and  afterwards  those  of  the 
Sabines,  as  we  are  informed  by  Livy,  were  transferred 
to  the  Romans,  and  they  became  one  government.  The 
same  reasoning  holds  good  respecting  states,  which  are 
joined,  not  by  a  federal  UNION,  but  by  having  one  sov- 
ereign for  their  head. 

IX.  On  the  other  hand,  it  may  happen  that  a  nation, 
originally  forming  but  one  state,  may  be  divided,  either 
by  mutual  consent,  or  by  the  fate  of  war;  as  the  body 
of  the  Persian  Empire  was  divided  among  the  successors 
of  Alexander.  When  this  is  the  case,  many  sovereign 
powers  arise  in  the  place  of  one,  each  enjoying  its  inde- 
pendent rights,  whatever  belonged  to  the  original  state, 
in  common,  must  either  continue  to  be  governed  as  a 
common  concern,  or  be  divided  in  equitable  proportions. 

To  this  head  may  be  referred  the  voluntary  separation, 
which  takes  place  when  a  nation  sends  out  colonies.  For 

•Section  VII  of  the  original  is  omitted  in  the  translation. —  TRANS- 
LATOR. 


122  HUGO    GROTIUS 

thus  a  new  people  as  it  were  is  formed,  enjoying  their 
own  rights;  and  as  Thucydides  says,  sent  out  not  upon 
terms  of  slavery,  but  equality,  yet  still  owing  respect 
and  obedience  to  their  mother-country.  The  same  writer, 
speaking  of  the  second  colony  sent  by  the  Corinthians  to 
Epidamnus,  says,  <(they  gave  public  notice  that  such  as 
were  willing  to  go  should  enjoy  equal  privileges  with 
those  that  staid  at  home.* 


CHAPTER  X. 

THE  OBLIGATION  ARISING  FROM  PROPERTY. 

Origin  and  nature  of  the  obligation  to  restore  what  belongs  to  an- 
other—  Obligation  to  restore  to  the  rightful  owner  the  profits  that 
have  accrued  from  the  unjust  possession  of  his  personal  or  real 
property  —  A  bona-fide  possessor  not  bound  to  restitution  if  the 
thing  has  perished  —  Such  bona-fide  possessor  bound  to  the  restitu- 
tion of  the  profits  remaining  in  his  hands — Bound  to  make  repara- 
tion for  the  consumption  occasioned  by  his  possession  —  A  possessor 
not  bound  to  make  a  recompence  for  a  gift,  with  an  exception  — 
The  sale  of  any  thing  that  has  been  bought,  obliges  the  seller  to 
make  restitution,  with  a  certain  exception  —  In  what  cases  a  bona- 
fide  purchaser  of  what  belongs  to  another  may  retain  the  price,  or 
a  part  of  it  —  He  who  has  purchased  a  thing  of  one  who  is  not 
the  real  owner,  cannot  return  it  to  that  seller  —  The  possessor 
of  a  thing  whose  real  owner  is  unknown,  not  bound  to  give  it 
up  to  any  one  —  A  person  not  bound  to  restore  money  received 
upon  a  dishonest  account,  or  for  service  done  —  Opinion  that 
the  property  of  things  valued  by  weight,  number  and  measure, 
may  be  transferred  without  consent  of  the  owner,  refuted. 

I.  HAVING  explained  in  the  preceding-  part  the  nature 
and  rights  of  property,  it  remains  for  us  to  consider  the 
obligation  which  we  incur  from  thence. 

Now  this  obligation  proceeds  from  things  either  in 
existence,  or  not  in  existence,  comprehending,  under  the 
name  of  things,  the  right  also  over  persons,  as  far  as  is 
beneficial  to  us.  The  obligation,  arising  from  things  in 
existence,  binds  the  person,  who  has  our  property  in  his 
power,  to  do  all  he  can  to  put  us  again  into  possession 
of  it.  We  have  said  to  do  all  he  can :  for  no  one  is  bound 
to  an  impossibility,  nor  to  procure  the  restoration  of  a 
thing  at  his  own  expence.  But  he  is  obliged  to  make 
every  discovery  which  may  enable  another  to  recover  his 
own  property.  For  as  in  a  community  of  things,  it  was 
necessary  that  a  certain  equality  should  be  preserved,  to 
prevent  one  man  from  having  an  undue  share  of  the 
common  stock;  so  upon  the  introduction  of  property,  it 
became,  as  it  were,  a  kind  of  established  rule  of  society 
among  the  owners,  that  the  person,  who  had  in  his  pos- 
session anything  belonging  to  another  should  restore  it 
to  the  lawful  proprietor.  For  if  the  right  of  property 

(123) 


124  HUGO   GROTIUS 

extended  no  farther  than  barely  to  enable  the  owner  to 
make  a  demand  of  restitution  without  ENFORCING  it  by 
LEGAL  PROCESS,  it  would  rest  upon  a  very  weak  foun- 
dation, and  scarce  be  worth  the  holding.  Nor  does  it 
make  any  difference,  whether  a  person  has  fairly  or  fraud- 
ulently obtained  possession  of  a  thing  not  belonging  to 
him.  For  he  is  equally  bound  to  restore  it,  both  by  the 
positive  obligations  of  law,  and  by  the  principles  of 
natural  justice.  The  Lacedaemonians  had  nominally 
cleared  themselves  of  the  crime,  by  condemning  Phaebidas, 
who,  in  violation  of  their  treaty  with  the  Thebans,  had 
siezed  upon  the  citadel  of  Cadmea,  but  in  reality  they 
were  guilty  of  injustice,  by  retaining  the  possession. 
And  Xenophon  has  remarked  that,  such  a  singular  act  of 
injustice  was  punished  by  the  signal  providence  of  God. 
For  the  same  reason  Marcus  Crassus,  and  Quintus  Hor- 
tensius,  are  blamed  for  having  retained  part  of  an 
inheritance  left  them  by  a  will,  the  making  of  which  had 
been  procured  upon  false  pretences,  but  in  the  management 
of  which  they  had  no  share.  Cicero  blames  them,  because 
it  is  understood  to  be  settled  by  general  agreement,  that  all 
men  are  to  restore  what  they  are  possessed  of,  if  another  is 
proved  to  be  the  rightful  owner.  A  principle  by  which  prop- 
erty is  firmly  secured,  and  upon  which  all  special  contracts 
are  founded,  and  any  exceptions  to  this  rule,  contained 
in  them,  must  be  expressly  named  as  such.  This  throws 
light  upon  the  passage  of  Tryphoninus.  (<  If  a  robber, 
says  he,  has  spoiled  me  of  my  goods,  which  he  has  de- 
posited with  Seius,  who  knows  nothing  of  the  fact;  the 
question  is,  whether  he  ought  to  restore  them  to  the 
robber  or  to  me.  If  we  consider  him  as  giving  and 
and  receiving  on  his  own  account,  GOOD  FAITH  requires 
that  the  deposit  should  be  restored  to  him  who  gave  it. 
If  we  consider  the  equity  of  the  whole  case,  including  all 
the  persons  concerned  in  the  transaction,  the  goods  should 
be  restored  to  me,  as  the  person  unjustly  deprived  of 
them.  *  And  he  properly  adds,  <(  I  prove  it  to  be  strict 
justice  to  assign  to  every  one  his  due,  without  infringing 
on  the  more  just  claims  of  another.8  Now  it  has  been 
shewn  that  the  justest  title  on  which  any  one  can  claim, 
is  that  which  is  coaeval  with  the  property  itself.  From 
whence  the  principle  laid  down  by  Tryphoninus,  that  if 
any  one  unknowingly  received  goods  as  a  deposit,  and 
afterwards  discovers  them  to  be  his  own,  he  is  not  bound 
to  restore  them.  And  the  question,  which  the  same 


THE  RIGHTS  OF  WAR   AND   PEACE  125 

author  puts  a  little  before  respecting  goods  deposited  by 
one,  whose  property  had  been  confiscated,  is  better  settled 
by  this  principle,  than  by  what  he  says  elsewhere  on  the 
utility  of  punishment.  For  as  to  the  nature  of  property, 
it  makes  no  difference,  whether  it  arises  from  the  law 
of  nations,  or  from  the  civil  law;  as  it  always  carries 
with  it  peculiar  qualities,  among  which  may  be  reckoned 
the  obligation,  under  which  every  possessor  lies  to  restore 
a  thing  to  its  rightful  owner.  And  hence  it  is  said  by 
Martian,  that  according  to  the  law  of  nations,  restitution 
may  be  demanded,  of  those,  who  have  no  legal  title  to 
the  possession.  From  the  same  origin  springs  the  maxim 
of  Ulpian,  that  whoever  has  found  a  thing  belonging  to 
another,  is  bound  to  restore  it,  even  without  claiming  or 
receiving  a  reward  for  finding  it.  The  profits  also  are 
to  be  restored,  with  a  deduction  only  of  reasonable 
charges. 

II.  Respecting  things,  non-existent,  or  whose  identity 
cannot  be  ascertained,  is  a  principle  generally  received 
among  mankind,  that  the  person,  who  has  become  richer 
by  that  property,  of  which  the  rightful  owner  has  been 
dispossessed,  is  bound  to  make  him  reparation  in  propor- 
tion to  the  benefit,  which  he  has  derived  from  his  prop- 
erty. For  the  true  proprietor  may  be  justly  said  to  have 
lost,  what  HE  has  gained.  Now  the  very  introduction  of 
property  was  intended  to  preserve  that  equality,  which 
assigns  to  every  one  his  own. 

Cicero  has  said,  that  it  is  contrary  to  natural  justice, 
for  one  man  to  improve  his  own  advantage  at  the  expence 
of  another,  and  in  another  place,  that  nature  does  not 
allow  us  to  increase  our  resources,  riches,  and  power, 
from  the  spoils  of  others.  There  is  so  much  of  equity 
in  this  saying,  that  many  legal  writers  have  made  it  the 
basis  of  their  definitions,  to  supply  the  deficiency  of  the 
strict  letter  of  the  law,  always  appealing  to  equity  as 
the  most  sure  and  clear  rule  of  action. 

If  any  one  employ  a  slave,  as  his  factor,  to  trade  for 
him,  he  is  bound  by  the  acts  of  that  factor,  unless  he 
has  previously  given  notice  that  he  is  not  to  be  trusted. 
But  even  if  such  notice  has  been  given,  where  the  factor 
has  a  property  in  the  concern,  or  the  master  a  profit, 
the  notice  shall  be  deemed  a  fraud.  For,  says  Proculus, 
whoever  makes  an  advantage  from  the  loss  of  another  is 
guilty  of  a  fraud;  a  term  implying  every  thing  repugnant 
to  natural  justice  and  equity.  He,  who,  at  the  instance 


126  HUGO   GROTIUS 

of  a  mother,  has  put  in  bail  for  her  son's  advocate,  has 
no  action  on  the  case  against  the  advocate  for  what  is 
called  an  assumpsit  or  undertaking.  For  it  was  not 
strictly  his  business,  which  the  advocate  managed;  the 
bail  was  put  in  at  the  INSTANCE  of  the  MOTHER.  Yet 
according  to  the  opinion  of  Papinian,  an  action  on  the 
case  for  the  assumpsit,  or  undertaking  will  lie  against 
the  advocate,  because  it  is  with  the  bailor's  money  that 
he  is  discharged  from  the  risque  of  the  costs. 

So  a  wife  who  has  given  to  her  husband  money,  which 
she  may  by  law  demand  again,  has  a  personal  action  of 
recovery  against  him,  or  an  indirect  action  upon  any 
thing  purchased  with  the  money.  Because,  as  Ulpian 
says,  it  cannot  be  denied,  that  the  husband  has  been 
made  richer  by  it,  and  the  question  is,  whether  what  he 
possesses  belongs  to  his  wife  ? 

If  I  have  been  robbed  by  my  slave,  and  any  one  has 
spent  the  money  under  the  supposition  that  it  was  the 
slave's  own  property,  an  action  may  be  maintained  against 
that  person,  as  being  unjustly  in  possession  of  my  prop- 
erty. According  to  the  Roman  laws,  minors  are  not 
answerable  for  money  borrowed.  Yet  if  a  minor  has 
become  richer  by  the  loan,  an  indirect  action  will  lie 
against  him,  or,  if  anything,  belonging  to  another,  has 
been  pawned  and  sold  by  a  creditor,  the  debtor  should 
be  released  from  the  debt  in  proportion  to  what  the 
creditor  has  received.  Because,  says  Tryphoninus,  what- 
ever the  obligation  may  be,  since  the  money  raised 
accrued  from  the  debt,  it  is  more  reasonable  that  it 
should  redound  to  the  benefit  of  the  debtor  than  the 
creditor.  But  the  debtor  is  bound  to  indemnify  the  pur- 
chaser, for  it  would  not  be  reasonable  that  he  should 
derive  gain  from  another's  loss.  Now  if  a  creditor,  hold- 
ing an  estate  in  pledge  for  his  money,  has  received  from 
it  rents  and  profits  amounting  to  more  than  his  real 
debt;  all  above  that  shall  be  considered  as  a  discharge 
of  so  much  of  the  principal. 

But  to  proceed  with  other  cases.  If  you  have  treated 
with  my  debtor,  not  supposing  him  to  be  indebted  to 
me,  but  to  another  person,  and  have  borrowed  my  money 
of  him,  you  are  obliged  to  pay  me;  not  because  I  have 
lent  you  money;  for  that  could  only  be  done  by  mutual 
consent;  but  because  it  is  reasonable  and  just,  that  my 
money,  which  has  come  into  your  possession,  should  be 
restored  to  me. 


THE   RIGHTS   OF   WAR   AND   PEACE  127 

The  later  writers  on  the  law  have  adduced  this  kind  of 
reasoning  in  support  of  similar  cases.  Thus,  for  instance, 
if  the  goods  of  any  one,  who  has  been  cast  through  de- 
fault, have  been  sold,  if  he  can  make  any  good  exception 
to  the  decision,  he  shall  be  entitled  to  the  money  arising 
from  such  sale.  Again,  when  any  one  has  lent  money 
to  a  father  for  the  maintenance  of  his  son;  if  the 
father  should  become  insolvent,  he  may  bring  an  action 
against  the  son,  provided  the  son  is  possessed  of  any 
thing  through  his  mother. 

These  two  rules  being  perfectly  understood,  there  will 
be  no  difficulty  in  answering  the  questions  ofter  proposed 
by  Lawyers  and  Theologians  on  such  subjects. 

III.  In  the  first  place    it    appears,    that    a   person  who 
has  obtained  possession  of   goods   by   fair   means,  is  not 
bound  to  restitution,  if   those    goods   have   perished,  be- 
cause they  are  no  longer   in   his   possession,    nor  has  he 
derived  any  advantage  from  them.     The  case  of  unlawful 
possession  which  is  left  to  the  punishment  of  the  law  is 
entirely  out  of  the  question. 

IV.  In  the  next  place  a  bona-fide  possessor  of  a  thing 
is  bound  to  a  restitution  of  the  fruits    or   profits   thereof 
remaining  in  his  hand.     The  FRUITS    or   PRODUCE   of   the 
THING  ITSELF  are   here   meant.     For   the    benefit   derived 
from  a  thing  owing  to  the  industry  bestowed  upon  it  by 
the  occupier  thereof,   cannot   belong   to  the   thing  itself, 
though  originally  proceeding  from  it.     The  reason  of  this 
obligation  arises  from    the   institution   of   property.     For 
the  true  proprietor  of  a  possession  is  naturally  proprietor 
of  the  fruits  or  produce  of  the  same. 

V.  Such  possessor  in  the  third  place  is  bound  to  make 
restitution  of  the  thing,  or  reparation   for   the   consump- 
tion of  it  occasioned  by   his  possession.     For  he  is  con- 
ceived   to   have   been  made    the    richer   thereby.      Thus 
Caligula  is  praised  for  having,    in    the    beginning  of  his 
reign,    restored    to    different    Princes    along    with    their 
crowns,    the   intermediate    revenues    of  their   kingdoms. 

VI.  In  the  fourth  place,  an  occupier  of  lands,    for  in- 
stance,   is   not   bound   to   make    a   compensation   for  the 
produce  thereof  which   he   has   not   reaped.     For  if  dis- 
possessed, he  has  neither  the  thing  itself,  nor  any  thing 
in  the  place  of  it. 

VII.  In  the  fifth  place,  a  possessor   who  has    granted 
to  a  third  person  a  thing  of  which  a  gift  had  been  made 
to  himself,  is  not  bound  to  make    a  recompence    to    the 


128  HUGO   GROTIUS 

original  giver,  unless  he  received  it  under  stipulation, 
that  if  he  granted  it  to  a  third  person,  and  thereby  spared 
his  own  property,  he  should  make  a  return  proportionable 
to  such  gain. 

VIII.  Sixthly,  if  any  one  has    sold  a  thing   which   he 
has  bought,  he  is  not  bound  to  restitution  of  more  than 
the  surplus  arising  from  the  sale.     But  if  he  had  received 
it  under  stipulation  to  sell,  he  is  bound  to  make  restitu- 
tion of  the  whole  price,  unless,    in   transacting    the    sale 
he   has  incurred   an    expence,    amounting  to    the    whole 
price,  which  he  would  not  otherwise  have  done.* 

IX.  Seventhly,  a  bona-fide  purchaser  of  what  belongs 
to    another   is   obliged    to    make   restitution   to    the   real 
owner,  nor  can  the  price  he  paid  be  recovered.     To  this 
however  there  seems  to  be  one  exception,  which  is,  where 
the  owner  could  not  have   recovered   possession    without 
some  expence;  so    for   instance,  if   his   property   were  in 
the  hands  of  pirates.   For  then    a  deduction  may  be  made 
of  as  much  as  the  owner   would  willingly  have   spent  in 
the  recovery.     Because   the  actual   possession,    especially 
of  a  thing  difficult  to  be    recovered,  may   be  ascertained, 
and  the  owner   deemed  so   much  the   richer  by   such  re- 
covery.    And  therefore,  though  in  the  ordinary  course  of 
law,  the  purchase  of  what  belongs  to  one's  self  can  never 
constitute  a  bargain,  yet  Paulus  the  Lawyer  says,  that  it 
may  do  so,  if  it  has  been    originally  agreed   that  we  are 
to  pay  for  the  re-possession  of  what   another  has  belong- 
ing to  us  in  his  hands. 

Nor  is  it  in  the  least  material,  whether  a  thing  has 
been  bought  with  an  intention  of  restoring  it  to  the 
owner;  in  which  case,  some  say,  that  an  action  for  costs 
may  be  maintained,  whilst  others  deny  it.  For  an  action 
on  the  case,  to  recover  a  compensation  for  business  done 
arises  from  the  artificial  rules  of  CIVIL  LAW,  and  not  solely 

*  The  following  extracts  from  Blackstone's  Com.  b.  ii.  ch.  zxx.  will 
elucidate  the  meaning  of  our  author  in  this  place.     «  Sale  or  EXCHANGE 
is  a  transmutation  of  property  from  one  man  to  another,  in  consideration 
of  some  price  or  recompense;  for  there  is  no  sale  without  a  recompence.* 
P.  446. 

<(  Where  the  vendor  HATH  in  himself  the  property  of  the  goods  sold,  he 
hath  the  liberty  of  disposing  of  them  to  whom  ever  he  pleases,  at  any 
time,  and  in  any  manner. »  Ibid.  446. 

*  And  notwithstanding  any  number  of  intervening  sales,  if  the  origi- 
nal vendor,   who  sold  without  having  the  property,  comes  again  into 
possession  of  the  goods,  the  original  owner  may  take  them,  when  found 
in  his  hands  who  was  guilty  of  the  first  breach  of  justice. »    Ibid.  p.  450. 


THE   RIGHTS  OF   WAR  AND   PEACE  129 

from  the  simple  dictates  of  natural  justice;  which  are 
here  the  principal  subject  of  inquiry. 

Not  unlike  to  this  is  what  Ulpian  has  written  on  funeral 
expences,  in  which  he  says,  that  a  compassionate  judge 
will  not  rigidly  regard  the  bare  labour  that  has  been 
given,  but  allowing  some  relaxation  in  favour  of  equity, 
will  shew  indulgence  to  the  feelings  of  human  na- 
ture. 

The  same  writer,  in  another  place  has  said,  that  if  any 
one  has  transacted  my  business,  not  out  of  regard  to  me, 
but  for  his  own  interest,  and  has  incurred  expence  on 
my  account,  he  may  bring  an  action  on  the  case,  not  for 
what  he  has  given,  but  for  what  I  have  gained  by  his 
labour  and  expence. 

In  the  same  manner,  owners,  by  throwing  whose  goods 
overboard  a  ship  has  been  lightened,  may  recover  a  com- 
pensation from  others  whose  goods  were  by  that  means 
saved.  Because  those  persons  are  considered  so  much 
the  richer  by  the  preservation  of  what  would  otherwise 
have  been  lost. 

X.  Eighthly,  the  person  that  has  bought  a  thing  of  one, 
who   is  not  the   owner,    cannot  return  it   to  that  seller; 
because  from  the  time  that  the  thing  came  into  his  pos- 
session,  he   incurred   an   obligation  to   restore  it  to  the 
lawful   owner. 

XI.  Again,    if  any   one   is   in   possession    of    a    thing, 
whose    real   owner   is   unknown,  he  is  not  naturally,  and 
necessarily   bound   to   give   it   to  the  poor;  although  this 
may   be   considered    as   an   act  of  piety,    a   custom  very 
properly  established  in  some  places.     The  reason  of  which 
is  founded  on  the  introduction  of  property.     For,  in  con- 
sequence of  that,  no  one  except  the  real  owner,  can  claim 
a  right  to  any  thing.     To  the  person  therefore,  who  can- 
not  discover   such   an  owner,    it  is  the  same  as  if  there 
really  were  none. 

XII.  Lastly,    a    person   is   not   obliged  by  the  law  of 
nature   to   restore  money,  which  has  been  received  upon 
a   dishonest   account,    or  for   the  performance  of  a  legal 
act,    to  which   that  person  was  of  himself  bound.     How- 
ever it  is  not  without  reason  that  some  laws  have  required 
restitution  in  such  cases.     The  reason  of  this  is,  because 
no  one  is  bound  to  part  with  any  thing  unless  it  belongs 
to   another.     But   here   the  property  is  voluntarily  trans- 
ferred by  the  first  owner. 

The  case  will  be  altered,  if  there  be  any  thing  iniquitous 
9 


130  HUGO   GROTIUS 

in  the  manner  of  acquiring  the  thing1;  as  if,  for  instance, 
it  be  gained  by  extortion.  This  gives  rise  to  the  obliga- 
tion of  submitting  to  penalties,  which  is  not  immediately 
to  the  present  purpose. 

XIII.  The  present  subject  may  be  concluded  with  a 
refutation  of  Medina's  false  opinion,  that  a  property  in 
things,  belonging  to  another,  may  be  transferred  without 
consent  of  the  owner;  provided  the  things  are  such  as 
are  usually  valued  by  weight,  number  and  measure.  Be- 
cause things  of  that  nature  can  be  repaid  in  kind,  or  by 
an  equivalent.  But  this  is  only,  where  such  a  mode  of 
repayment  has  been  previously  agreed  upon;  or  where 
it  is  understood  to  be  established  by  law  or  custom  ;  or 
where  the  thing  itself  has  been  consumed,  and  cannot  be 
identically  restored.  But  without  such  consent,  either 
expressed  or  implied,  or  excepting  the  impossibility  just 
mentioned,  the  things  themselves  must  be  restored. 


CHAPTER  XL 
ON  PROMISES. 

Opinion,  that  the  obligation  to  fulfil  promises  is  not  enacted  by  the 
law  of  nature,  refuted  —  A  bare  assertion  not  binding — A  promiser 
bound  to  fulfil  his  engagements,  though  no  right  to  exact  the  per- 
formance of  them,  is  thereby  conveyed  to  another — What  kind  of 
promise  gives  such  right — The  promiser  should  possess  the  right 
use  of  reason  —  Difference  between  natural  and  civil  law  with  respect 
to  minors  —  Promises  made  under  an  error,  or  extorted  by  fear, 
how  far  binding  —  Promises  valid,  if  in  the  power  of  the  promiser 
to  perform  them  —  Promise  made  upon  unlawful  considerations, 
whether  binding — Manner  of  confirming  the  promises  made  by 
others,  and  the  conduct  of  Ambassadors  who  exceed  their  instruc- 
tions, considered  —  Owners  of  ships,  how  far  bound  by  the  acts  of 
the  masters  of  such  vessels,  and  merchants  by  the  acts  of  their 
factors  —  Acceptance  requisite  to  give  validity  to  a  promise  —  Prom- 
ises sometimes  revokable  —  The  power  of  revoking  a  promise, 
explained  by  distinctions  —  Burdensome  conditions  annexed  to  a 
promise  —  Means  of  confirming  invalid  promises  —  Natural  obliga- 
tion arising  from  engagements  made  for  others. 

I.  THE  course  of  the  subject  next  leads  to  an  inquiry 
into  the  obligation  of  promises.*  Where  the  first  object, 
that  presents  itself,  is  the  opinion  of  Franciscus  Connanus, 
a  man  of  no  ordinary  learning.  He  maintains  an  opinion 
that  the  law  of  nature  and  of  nations  does  not  enforce 
the  fulfilment  of  those  agreements,  which  do  not  include 
an  express  contract,  f  Yet  the  fulfilment  of  them  is  right, 
in  cases,  where,  even  without  a  promise,  the  performance 
would  be  consonant  to  virtue  and  equity.  In  support  of 
his  opinion,  he  brings  not  only  the  sayings  of  Lawyers, 
but  likewise  the  following  reasons.  He  says,  that  the 
person,  who  makes,  and  he  who  believes,  a  rash  promise, 

*  «  A  promise  is  in  the  nature  of  a  verbal  covenant,  and  wants  noth- 
ing but  the  solemnity  of  writing  and  sealing  to  make  it  absolutely  the 
same.  If  therefore  it  be  to  do  any  explicit  act,  it  is  an  express  con- 
tract, as  much  as  any  covenant;  and  the  breach  of  it  is  an  equal  in  jury. » 
—  Blackst  Com.  b.  iii.  ch.  ix.  sect  3. 

f  All  the  reasonings  of  Grotius,  on  this,  and  on  every  other  point, 
are  intended  to  apply  not  only  to  the  transactions  of  individuals,  but 
to  the  conduct  and  affairs  of  nations. 

(131) 


132  HUGO  GROTIUS 

are  equally  to  blame.  For  the  fortunes  of  all  men  would 
be  in  imminent  danger,  if  they  were  bound  by  such 
promises,  which  often  proceed  from  motives  of  vanity 
rather  than  from  a  settled  deliberation,  and  are  the  result 
of  a  light  and  inconsiderate  mind.  Lastly,  the  perform- 
ance of  whatever  is  any  way  just  in  itself,  ought  to  be 
left  to  the  free  will  of  every  one,  and  not  exacted  accord- 
ing to  the  rigid  rules  of  necessity.  He  says  that  it  is 
shameful  not  to  fulfil  promises;  not  because  it  is  unjust, 
but  because  it  argues  a  levity  in  making  them. 

In  support  of  his  opinion,  he  appeals  also  to  the  testi- 
mony of  Tully,  who  has  said,  that  those  promises  are  not 
to  be  kept,  which  are  prejudicial  to  the  person  to  whom 
they  are  made,  nor,  if  they  are  more  detrimental  to  the 
giver  than  beneficial  to  the  receiver.  But  if  the  perform- 
ance of  an  engagement  is  begun  upon  the  strength  of  a 
promise,  but  not  finished,  he  does  not  require  a  complete 
fulfilment  of  the  promise,  but  only  some  compensation  to 
the  party  for  the  disappointment.  Agreements,  he  contin- 
ues, have  no  intrinsic  force  of  obligation,  but  only  what 
they  derive  from  the  express  contracts,  in  which  they 
are  included,  or  to  which  they  are  annexed,  or  from  the 
delivery  of  the  thing  promised.  From  whence  arise 
actions,  on  the  one  side,  and  exceptions  on  the  other,  and 
bars  to  all  claims  of  recovery. 

But  it  is  through  favour  of  the  laws  alone,  which  give 
the  efficacay  of  obligation  to  what  is  only  fair  and  equit- 
able in  itself,  that  obligatory  agreements,  such  as  express 
covenants  and  other  things  of  that  kind,  derive  their  force. 

Now  there  is  no  consistency  in  this  opinion,  taken  in 
the  general  sense  intended  by  its  author.  For  in  the 
first  place  it  immediately  follows  from  thence,  that  there 
is  no  force  in  treaties  between  kings  and  different  nations, 
till  some  part  of  them  be  carried  into  execution,  espe- 
cially in  those  places,  where  no  certain  form  of  treaties 
or  compacts  has  been  established.  But  no  just  reason 
can  be  found,  why  laws,  which  are  a  kind  of  general 
agreement  among  a  people,  and  indeed  are  called  so  by 
Aristotle,  and  Demosthenes,  should  be  able  to  give  the 
force  of  obligation  to  compacts,  and  why  the  will  of  an  indi- 
vidual, doing  every  thing  to  bind  himself,  should  not  have 
the  same  power;  especially  where  the  civil  law  creates 
no  impediment  to  it.  Besides,  as  it  has  been  already  said 
that  the  property  of  a  thing  may  be  transferred,  where  a 
sufficient  indication  of  the  will  is  given.  Why  may  we 


THE   RIGHTS  OF   WAR  AND   PEACE  133 

not  then  convey  to  another  the  right  to  claim  a  transfer 
of  our  property  to  him,  or  the  fulfilment  of  our  engage- 
ments, as  we  have  the  same  power  over  our  actions,  as 
over  our  property  ? 

This  is  an  opinion  confirmed  by  the  wisdom  of  all  ages. 
For  as  it  is  said  by  legal  authorities,  that  since  nothing  is  so 
consonant  to  natural  justice,  as  for  the  will  of  an  owner, 
freely  transferring  his  property  to  another,  to  be  confirmed, 
so  nothing  is  more  conducive  to  good  faith  among  men, 
than  a  strict  adherence  to  the  engagements  they  have  made 
with  each  other.  Thus  a  legal  decision  for  the  payment 
of  money,  where  no  debt  has  been  incurred,  except  by 
the  verbal  consent  of  the  party  promising,  is  thought  con- 
formable to  natural  justice.  Paulus  the  Lawyer  also  says, 
that  the  law  of  nature  and  the  law  of  nations  agree  in 
compelling  a  person ,  who  has  received  credit,  to  payment. 
In  this  place  the  word,  COMPELLING,  signifies  a  moral  obli- 
gation. Nor  can  what  Connanus  says  be  admitted,  which 
is,  that  we  are  supposed  to  have  credit  for  a  full  per- 
formance of  a  promise,  where  the  engagement  has  been 
in  part  fulfilled.  For  Paulus  in  this  place  is  treating  of 
an  action  where  nothing  is  due;  which  action  is  entirely 
void,  if  money  has  been  paid,  in  any  way,  whether  accord- 
ing to  the  manner  expressly  stipulated,  or  any  other.  For 
the  civil  law,  in  order  to  discourage  frequent  causes  of 
litigation,  does  not  interfere  with  those  agreements  which 
are  enforced  by  the  law  of  nature  and  of  nations. 

Tully,  in  the  first  book  of  his  Offices,  assigns  such 
force  to  the  obligation  of  promises,  that  he  calls  fidelity 
the  foundation  of  justice,  which  Horace  also  styles  the 
sister  of  justice,  and  the  Platonists  often  call  justice, 
TRUTH,  which  Apuleius  has  translated  FIDELITY,  and 
Simonides  has  defined  justice  to  be  not  only  returning 
what  one  has  received,  but  also  speaking  the  truth. 

But  to  understand  the  matter  fully,  we  must  carefully 
observe  that  there  are  three  different  ways  of  speaking, 
respecting  things  which  ARE,  or  which,  it  is  supposed, 
WILL  be  in  our  power. 

II.  The  first  of  these  ways  is,  where  an  assurance  is 
given  of  future  intentions,  and  if  the  assurance  be 
SINCERE  at  the  time  it  is  given,  though  it  should  not  be 
carried  into  effect,  no  blame  is  incurred,  as  it  might 
afterwards  not  be  found  expedient.  For  the  human 
mind  has  not  only  a  natural  power,  but  a  right  to  change 
its  purpose.  Wherefore  if  any  blame  attaches  to  a  change 


134  HUGO   GROTIUS 

of  opinion,  or  purpose,  it  is   not   to   be   imputed    to   the 

BARE    ACT    OF    CHANGING,    but   to    the    CIRCUMSTANCES,    Under 

which  it  happens,  especially  when  the   former  resolution 
was  the  best. 

III.  The   second  way   is,    when   future   intentions   are 
expressed  by  outward  acts  and  signs  sufficient  to  indicate 
a  resolution  of  abiding  by  present  assurances.     And  these 
kind   of   promises   may   be   called   imperfect  obligations, 
but  conveying  to  the  person  to  whom  they  are  given  no 
RIGHT  to  exact  them.     For  it  happens  in  many  cases  that 
we  may  be  under  an  obligation  of  duty,  to  the  perform- 
ance of  which  another  has  no  right  to  compel  us.     For 
in  this  respect   the   duty  of   fidelity   to   promises,  is  like 
the  duties  of  compassion   and   gratitude.     In  such  kinds 
of  promises  therefore  the  person  to  whom  they  are  made, 
has  no  right,  by  the  law  of  nature  to  possess  himself  of 
the  effects  of  the  promiser,  as  his   own,  nor  to   COMPEL 
him  to  the  performance  of  his  promise. 

IV.  The   third  way  is,  where   such  a  determination  is 
confirmed  by  evident   signs   of  an  intention  to  convey  a 
peculiar  right  to   another,  which   constitutes   the   perfect 
obligation  of  a  promise,  and  is  attended  with  consequences 
similar  to  an  alienation  of  property. 

There  may  be  two  kinds  of  alienation,  the  one  of  our 
property,  the  other  of  a  certain  portion  of  our  liberty. 
Under  those  of  the  former  kind  we  may  class  the  prom- 
ises of  gifts,  and  under  the  latter  the  promises  of  doing 
certain  actions.  On  this  subject  we  are  supplied  with 
noble  arguments  from  the  divine  oracles,  which  inform 
us,  that  God  himself,  who  can  be  limited  by  no  estab- 
lished rules  of  law,  would  act  contrary  to  his  own  nature, 
if  he  did  not  perform  his  promises.  From  whence  it 
follows  that  the  obligations  to  perform  promises  spring 
from  the  nature  of  that  unchangeable  justice,  which  is 
an  attribute  of  God,  and  common  to  all  who  bear  his 
image,  in  the  use  of  reason.  To  the  proofs  of  scripture 
here  referred  to,  we  may  add  the  judgment  of  Solomon, 
<(  My  son  if  thou  hast  been  surety  for  thy  friend,  thou 
hast  tied  up  thy  hands  to  a  stranger;  thou  art  ensnared 
by  the  words  of  thy  mouth,  then  art  thou  taken  by  the 
words  of  thine  own  mouth. }>  Hence  a  promise  is  called  by 
the  Hebrews  a  bond  or  chain,  and  is  compared  to  a  vow. 
Eustathius  in  his  notes  on  the  second  book  of  the  Iliad, 
assigns  a  similar  origin  to  tfle  word  U7ro<r/e<rc<u?  or  engage- 
ment. For  he  who  has  received  the  promise,  in  some 


THE   RIGHTS   OF   WAR   AND   PEACE  135 

measure  takes  and  holds  the  person,  that  has  made  the 
engagement.  A  meaning  not  ill  expressed  by  Ovid  in 
the  second  book  of  his  Metamorphoses,  where  the  prom- 
iser  says  to  him,  to  whom  he  had  promised,  <(  My  word 
has  become  yours." 

After  knowing  this,  there  remains  no  difficulty  in  re- 
plying to  the  arguments  of  Connanus.  For  the  expres- 
sions of  the  lawyers,  respecting  BARE  PROMISES,  refer  only 
to  what  was  introduced  by  the  Roman  laws,  which  have 
made  a  FORMAL  STIPULATION  the  undoubted  sign  of  a 
deliberate  mind. 

Nor  can  it  be  denied  that  there  were  similar  laws 
among  other  nations.  For  Seneca,  speaking  of  human 
laws,  and  promises  made  without  proper  solemnities,  says, 
"What  law,  of  any  country ',  we  may  add,  obliges  us  to 
the  performance  of  bare  promises  ? B  But  there  may 
naturally  be  other  signs  of  a  deliberate  mind,  besides  a 
formal  stipulation,  or  any  other  similar  act  which  the 
civil  law  requires,  to  afford  grounds  for  a  legal  remedy. 
But  what  is  not  done  with  a  deliberate  mind,  we  are 
inclined  to  believe  does  not  come  under  the  class  of  per- 
fect obligations;  as  Theophrastus  has  observed  in  his 
book  on  laws.  Nay,  even  what  is  done  with  a  deliberate 
mind,  but  not  with  an  intention  of  conceding  our  own 
right  to  another;  though  it  cannot  give  any  one  a 
natural  right  of  exacting  its  fulfilment,  yet  it  creates  an 
obligation  not  only  in  point  of  duty,  but  in  point  of 
moral  necessity.  The  next  matter  to  be  considered  is, 
what  are  the  requisites  to  constitute  a  perfect  promise. 

V.  The  use  of  reason  is  the  first  requisite  to  constitute 
the  obligation  of  a  promise,  which  ideots,  madmen,  and 
infants  are  consequently  incapable  of  making.  The  case 
of  minors  is  somewhat  different.  For  although  they  may 
not  have  a  sound  judgment,  yet  it  is  not  a  permanent 
defect,  nor  sufficient  of  itself  to  invalidate  all  their  acts. 
It  cannot  be  certainly  defined  at  what  period  of  life 
reason  commences.  But  it  must  be  judged  of  from  daily 
actions,  or  from  the  particular  customs  of  each  country. 
Amongst  the  Hebrews  a  promise  made  by  a  male  at  the 
age  of  thirteen,  and  by  a  female  at  the  age  of  twelve, 
was  valid.  In  other  nations,  the  civil  laws,  acting  upon 
just  motives,  declare  certain  promises  made  by  wards 
and  minors  to  be  void,  not  only  among  the  Romans,  but 
among  the  Greeks  also,  as  it  has  been  observed  by  Dion 
Chrysostom  in  his  twenty-fifth  oration.  To  do  away  the 


136  HUGO   GROTIUS 

effect  of  improvident  promises,  some  laws  introduce 
actions  of  recovery,  or  restitution.  But  such  regulations 
are  peculiar  to  the  civil  law,  and  have  no  immediate  con- 
nection with  the  law  of  nature  and  of  nations,  any  farther 
than  that  wherever  they  are  established,  it  is  consonant 
to  natural  justice  that  they  should  be  observed.  Where- 
fore if  a  foreigner  enter  into  an  agreement  with  a  citizen 
or  subject  of  any  other  country;  he  will  be  bound  by 
the  laws  of  that  country,  to  which,  during  his  residence 
therein,  he  owes  a  temporary  obedience.  But  the  case  is 
different,  where  an  agreement  is  made  upon  the  open 
sea,  or  in  a  desert  island,  or  by  letters  of  correspondence. 
For  such  contracts  are  regulated  by  the  law  of  nature 
alone,  in  the  same  manner  as  compacts  made  by  sover- 
eigns in  their  public  capacity. 

VI.  The  consideration  of  promises,  made  under  an  er- 
ror, is  a  subject  of  some  intricacy.  For  it,  in  general, 
makes  a  difference,  whether  the  promiser  knew  the  full 
extent  of  his  promise,  and  the  value  of  the  thing  prom- 
ised, or  not,  or  whether  the  contract,  which  was  made, 
originated  in  fraudulent  intention,  or  not,  or  whether  one 
of  the  parties  was  privy  to  the  fraud;  and  whether  the 
fulfilment  of  it  was  an  act  of  strict  justice,  or  only  of 
good  faith.  For  according  to  the  variety  of  these  cir- 
cumstances, writers  pronounce  some  acts  void  and  oth- 
ers valid,  leaving  the  injured  party  a  discretionary  power 
to  rescind  or  amend  them. 

Most  of  these  distinctions  originate  in  the  ancient  civil, 
and  praetorian  Roman  law.  Though  some  of  them  are 
not  strictly  founded  in  reason  and  truth.  But  the  most 
obvious  and  natural  way  of  discovering  the  truth  is  by 
referring  to  laws,  which  derive  their  force  and  efficacy 
from  the  general  consent  of  mankind;  so  that  if  a  law 
rests  upon  the  presumption  of  any  fact,  which  in  reality 
has  no  existence,  such  a  law  is  not  binding.  For  when 
no  evidence  of  the  fact  can  be  produced,  the  entire  founda- 
tion, on  which  that  law  rests  must  fail.  But  we  must 
have  recourse  to  the  subject,  to  the  words  and  circum- 
stances of  a  law,  to  determine  when  it  is  founded  on  such 
a  presumption.* 

*  «  The  most  universal  and  effectual  way  of  discovering  the  true  mean- 
ing of  a  law,  when  the  words  are  dubious,  is  by  considering  the  REA- 
SON and  SPIRIT  of  it,  or  the  cause  which  moved  the' legislator  to  enact  it. 
For  when  the  reason  ceases,  the  law  itself  ought  likewise  to  cease  with 
it»— Blackst  Introd.  Com.  ch.  2.  p.  16. 


THE  RIGHTS   OF   WAR   AND   PEACE  137 

The  same  rule  applies  to  the  interpretation  of  prom- 
ises. For  where  they  are  made  upon  the  supposition  of 
a  fact,  which  in  the  end  proves  not  to  be  true,  they  lose 
the  force  of  obligations.  Because  the  promiser  made 
them  upon  certain  conditions  only,  the  fulfilment  of  which 
becomes  impossible.  Cicero,  in  his  first  book  on  the  tal- 
ents and  character  of  an  orator,  puts  the  case  of  a  father, 
who,  under  the  supposition  or  intelligence  that  his  son 
was  dead,  promised  to  devise  his  property  to  his  nephew. 
But  the  supposition  proving  erroneous,  and  the  intelli- 
gence false,  the  father  was  released  from  the  obligation 
of  the  promise  made  to  his  relative.  But  if  the  promiser 
has  neglected  to  examine  the  matter,  or  has  been  care- 
less in  expressing  his  meaning,  he  will  be  bound  to  re- 
pair the  damage  which  another  has  sustained  on  that 
account.  This  obligation  is  not  built  on  the  strength  of 
the  promise,  but  on  the  injury,  which  it  has  occasioned. 
An  erroneous  promise  will  be  binding,  if  the  error  was 
not  the  OCCASION  of  the  promise.  For  here  there  is 
no  want  of  consent  in  the  party,  who  made  it.  But  if 
the  promise  was  obtained  by  fraud,  the  person  so  obtain- 
ing it  shall  indemnify  the  promiser  for  the  injury  sus- 
tained, if  there  has  been  any  partial  error  in  the  promise, 
yet  in  other  respects  it  shall  be  deemed  valid. 

VII.  Promises  extorted  by  fear  are  a  subject  of  no  less 
intricate  decision.  For  here  too  a  distinction  is  usually 
made  between  a  well  founded  and  a  chimerical  fear, 
between  a  just  fear  and  a  bare  suspicion,  and  between 
the  persons  who  occasion  it,  whether  it  be  the  person  to 
whom  the  promise  is  given,  or  some  other.  A  distinction 
is  also  made  between  acts  purely  gratuitous,  and  those 
in  which  both  parties  have  an  interest.  For  according  to 
all  this  variety  of  circumstances  some  engagements  are 
considered  as  void,  others  as  revocable  at  the  pleasure 
or  discretion  of  the  maker,  and  others  as  warranting  a 
claim  to  indemnity  for  the  inconvenience  occasioned. 
But  on  each  of  these  points  there  is  great  diversity  of 
opinion. 

There  is  some  shew  of  reason  in  the  opinion  of  those 
who,  without  taking  into  consideration  the  power  of  the 
civil  law  to  annul  or  diminish  an  obligation,  maintain 
that  a  person  is  bound  to  fulfil  a  promise  which  he  has 
given  under  impressions  of  fear.  For  even  in  this  case 
there  was  CONSENT,  though  it  was  extorted;  neither  was 
it  conditional,  as  in  erroneous  promises,  but  absolute. 


i38  HUGO   GROTIUS 

It  is  called  CONSENT.  For  as  Aristotle  has  observed, 
those  who  consent  to  throw  their  goods  overboard  in  a 
storm,  would  have  saved  them,  had  it  not  been  for  the 
fear  of  shipwreck.  But  they  freely  part  with  them  con- 
sidering all  the  circumstances  of  time  and  place. 

VIII.  To   render  a  promise   valid,  it  must  be   such  as 
it  is  in  the  power  of  the  promiser  to  perform.     For  which 
reason  no  promises  to  do  illegal  acts   are   valid;   because 
no  one  either  has,  or  ever  can  have  a  right  to  do  them. 
But  a  promise,  as  was   said  before,  derives   all  its  force 
from  the  right  of   the   promiser  to  make   it,    nor  can  it 
extend  beyond  that. 

If  a  thing  is  not  now  in  the  power  of  the  promiser, 
but  may  be  so  at  some  future  time;  the  obligation  will 
remain  in  suspense.  For  the  promise  was  only  made 
under  the  expectation  of  some  future  ability  to  fulfil  it. 
But  if  a  person  has  a  controul  over  the  condition  upon 
which  the  promise  is  made,  to  realise  it  or  not,  he  lies 
under  a  moral  obligation  to  use  every  endeavour  to  fulfil 
it.  But  in  obligations  of  this  kind  also,  the  civil  law, 
from  obvious  motives  of  general  utility,  occasionally  in- 
terposes its  authority  to  make  them  void:  obligations, 
which  the  law  of  nature  would  have  confirmed. 

IX.  The   next   general   inquiry,  for  the   most  part,  re- 
fers to  the  validity  of   promises  made  upon  any  immoral 
or  unlawful  consideration ;  as  if,  for  instance,  any  thing  is 
promised   to   another   on    condition   of  his  committing   a 
murder.      Here    the    very    promise    itself   is    wicked   and 
unlawful,    because    it    encourages    the    commission    of    a 
crime.     But  it  does  not  follow  that   every  FOOLISH  or  IM- 
PROVIDENT promise  loses  the  force  of  an  obligation,  as  in 
the  confirmation  of  imprudent  or  prodigal  grants,  for  no 
further  evil  can  result  from  a  confirmation   of  what  has 
been  already  given :  and  the  invalidity  of  promises  would 
be  a  greater  evil  than  any  that  could  result  from  a  con- 
firmation of  the  most  improvident.    But  in  promises  made 
upon  IMMORAL  and  UNLAWFUL  considerations,  there  is   al- 
ways a  criminality  remaining,  even  while   they  continue 
unfulfilled.     For  during  the  whole  of    that  time,  the   ex- 
pectation of  fulfilment  carries  with  it  the  indelible  mark 
of  encouragement  to  the  commission  of  a  crime. 

XII.*  We  are  obliged  to  confirm  the  engagements  made 
by  others,  acting  in  our  name,  if  it  is  evident  that  they 

*  Sections  X,  and  XI.  of  the  original  are  omitted  in  the  transla- 
tion.—  TRANSLATOR. 


THE   RIGHTS  OF  WAR  AND   PEACE  139 

had  special,  or  general  instructions  from  us  to  do  so. 
And  in  granting  a  commission  with  full  powers  to  any 
one,  it  may  so  happen  that  we  are  bound  by  the  con- 
duct of  that  agent,  even  if  he  exceed  the  secret  instruc- 
tions which  he  has  received.  For  he  acts  upon  that 
ostensible  authority,  by  which  we  are  bound  to  ratify 
whatever  he  does,  although  we  may  have  bound  him  to 
do  nothing  but  according  to  his  private  instructions. 
This  rule,  we  must  observe,  applies  to  the  promises 
made  by  ambassadors  in  the  name  of  their  sovereigns, 
when,  by  virtue  of  their  public  credentials,  they  have 
exceeded  their  private  orders. 

XIII.  From  the  preceding  arguments,  it  is  easy  to  un- 
derstand how  far  owners  of  ships  are  answerable  for  the 
acts  of  the  masters  employed   by  them   in   those  vessels, 
or  merchants  for  the  conduct  of  their  factors.     For  nat- 
ural   equity    will    qualify    the    actions    brought     against 
them,    according   to   the  instructions   and  powers    which 
they  give.     So   that   we   may  justly  condemn   the  rigour 
of  the    Roman    law,  in  making  the  owners  of  ships  ab- 
solutely   bound    by    all    the    acts    of    the    masters    em- 
ployed.    For  this  is  neither  consonant  to  natural  equity, 
which  holds  it  sufficient  for  each  party  to  be  answerable 
in   proportion    to   his    share,  nor   is  it  conducive   to  the 
public  good.     For  men  would  be  deterred  from  employ- 
ing ships,  if  they  lay  under  the   perpetual  fear  of  being 
answerable  for  the  acts  of  their  masters  to  an  unlimited 
extent.    And  therefore  in  Holland,  a  country  where  trade 
has  flourished  with  the  greatest  vigour,  the   Roman  law 
has  never  been   observed  either  now  or  at   any  former 
period.     On  the  contrary,  it  is   an    established  rule   that 
no  action  can  be  maintained   against  the  owner  for  any 
greater  sum  than  the  value  of  the  ship  and  cargo. 

For  a  promise  to  convey  a  right,  acceptance  is  no  less 
necessary  than  in  a  transfer  of  property.  And  in  this 
case  there  is  supposed  to  have  been  a  precedent  request, 
which  is  the  same  as  acceptance.  Nor  is  this  contra- 
dicted by  the  promises  which  the  civil  law  implies  every 
one  to  have  made  to  the  state,  WITHOUT  ANY  REQUEST  OR 

FORMAL    ACCEPTANCE. 

XIV.  A  reason  which  has  induced  some  to  believe  that 
the  sole  act  of  a  promiser,  by  the  law  of  nature,  is  suffi- 
cient.     Our    first    position    is    not    contradicted    by  the 
Roman  law.     For  it  no  where   says,  that   a  promise  has 
its   full   effect   before   acceptance,    but   only   forbids    the 


HO  HUGO   GROTIUS 

revocation  of  it  which  might  prevent  acceptance:  and 
this  effect  results,  not  from  NATURAL  but  from  purely 
LEGAL  rules. 

XV.  Another  question  is,  whether  the  acceptance  alone 
of    a   promise    is    sufficient,  or    whether    it   ought    to  be 
communicated    to   the   promiser  before   it   can   be   made 
binding. 

It  is  certain  that  a  promise  may  be  made  two  ways, 
either  upon  condition  of  its  being  fulfilled,  if  accepted, 
or  upon  condition  of  its  being  ratified,  if  the  promiser  is 
apprised  of  its  being  accepted.  And  in  cases  of  mutual 
obligation,  it  is  presumed  to  be  taken  in  the  latter  sense ; 
but  it  is  better  to  take  promises  that  are  purely  gratui- 
tous in  the  former  sense,  unless  there  be  evidence  to  the 
contrary. 

XVI.  From  hence    it  follows,  that   a  promise   may  be 
revoked,  without  the   imputation   of   injustice    or  levity, 
BEFORE  ACCEPTANCE,  as  no  right  has   yet  been  conveyed; 
especially  if  ACCEPTANCE  were  made  the  condition  of  its 
being  fulfilled.     It  may  be   revoked   too   if   the  party  to 
whom  it   was  made,  should    die   before    acceptance.     Be- 
cause it  is  evident  that  the    power   to   accept  it   or  not, 
was  conferred  upon  HIM,  and  not  upon  his  HEIRS.     For  to 
give  a  man  a  right,  which   may   POSSIBLY    descend  to  his 
heirs,  is  one  thing,  and  to  express  an  intention  of  giving 
it   to   his   heirs    is   another.     For   it  makes   an   essential 
difference  upon  what  person  the  favour  is  conferred.     This 
is  understood  in  the  answer  made  by  Neratius,  who  said, 
that  he  did  not  believe  the  prince  would  have  granted  to 
one  who  was  dead,  what  he  granted,  supposing  him  still 
alive. 

XVII.  A  promise  may  be  revoked,  by  the  death  of  the 
person  appointed  to   communicate    to   a    third  the  inten- 
tion of  the  promiser.     Because  the  obligation  to  the  third 
person   rested    upon    such    communication.     The    case    is 
different,  where  a  public  messenger  is  employed,  who  is 
not    himself    the    obligatory    instrument,    but    only    the 
means  through  which  it   is    conveyed.     Therefore  letters 
indicating  a  promise,  or  consent  may  be  conveyed  by  any 
one.     Yet  there   is   a   distinction  to    be  made    between  a 
minister  appointed   to    communicate   a   promise,  and  one 
appointed  to  make  the  promise  in  his  own  name. 

For  in  the  former  case,  a  revocation  will  be  valid,  even 
though  it  has  not  been  made  known  to  the  minister  em- 
ployed; but  in  the  latter  case,  it  will  be  entirely  void, 


THE   RIGHTS  OF  WAR  AND   PEACE  141 

because  the  right  of  promising  was  committed  to  the 
minister,  and  fully  depended  upon  his  will;  therefore  the 
obligation  of  the  promise  was  complete,  as  he  knew  of 
no  intended  revocation.  So  also  in  the  former  case, 
where  a  second  person  is  commissioned  to  communi- 
cate the  intentions  of  a  donor  to  a  third;  even  if  the 
donor  should  die,  the  acceptance  of  the  gift  will  be 
deemed  valid,  all  that  was  requisite  being  performed  on 
one  part;  though  till  that  period  the  intention  was  revo- 
cable, as  is  evident  in  the  case  of  bequests.  But  in  the 
other  case,  where  a  person  has  received  a  full  commission 
to  execute  a  promise  during  the  LIFE  of  the  donor,  should 
the  donor  die  before  the  execution  of  it,  and  the  person 
employed  be  apprised  of  his  death;  the  commission,  the 
promise,  and  the  acceptance  of  it  will  then,  at  once,  be- 
come void. 

In  doubtful  cases,  it  is  reasonable  to  suppose  that  it 
was  the  intention  of  the  promiser,  that  the  commission 
which  he  gave  should  be  executed,  unless  some  great 
change,  as  for  instance,  his  own  death  should  occur. 
Yet  reasons  in  favour  of  a  contrary  opinion  may  easily  be 
found  and  admitted,  especially  with  respect  to  pious  do- 
nations, which,  at  all  events,  ought  to  stand  good.  And 
in  the  same  manner  may  be  decided  the  long  disputed 
question,  whether  an  action  on  account  of  such  a  bequest 
could  be  brought  against  the  heir.  Upon  which  the 
author  of  the  second  book  to  Herennius  says,  that  Mar- 
cus Drusus  the  praetor  decided  one  way,  and  Sextus 
Julius  another. 

XVIII.  The  acceptance  of  a  promise  for  a  third  per- 
son is  a  matter  subject  to  discussion,  in  which  there  is 
a  distinction  to  be  observed  between  a  promise  made  to 
a  person  of  a  thing,  which  is  to  be  given  to  another, 
and  a  promise  made  directly  to  the  person  himself,  on 
whom  the  former  is  to  be  conferred.  If  a  promise  is  made 
to  any  one,  where  his  own  personal  interest  is  not  con- 
cerned, a  consideration  introduced  by  the  Roman  law, 
by  acceptance  he  seems  naturally  to  acquire  a  right 
which  may  be  transferred  to  another  for  HIS  acceptance,, 
and  this  right  will  pass  so  fully,  that  in  the  mean  time 
the  promise  cannot  be  revoked  by  the  person  who  gave, 
though  it  may  be  released  by  him  who  received  it.  For 
that  is  a  meaning  by  no  means  repugnant  to  the  law  of 
nature,  and  it  is  entirely  conformable  to  the  words  of  such 
a  promise;  nor  can  it  be  a  matter  of  indifference  to 


H2  HUGO   GRpTIUS 

the  person,  through  whom  another  is  to  receive  a  bene- 
fit. 

But  if  a  promise  'is  made  directly  to  one,  on  whom  a 
thing  is  to  be  conferred,  a  distinction  must  be  made, 
whether  the  person  receiving  such  a  promise  has  SPECIAL 
commission  for  acceptance,  or  one  so  GENERAL  as  to  in- 
clude acceptance,  or  has  it  not.  When  a  commission  has 
been  previously  given,  no  farther  distinction  is  necessary, 
whether  the  person  be  free  or  not,  a  condition  which 
the  Roman  laws  require.  But  it  is  plain  that  from  such 
an  acceptance,  let  the  condition  of  the  person  be  what 
it  will,  the  promise  is  complete :  because  consent  may  be 
given  and  signified  through  the  medium  of  another.  For 
a  person  is  supposed  to  have  fully  intended,  what  he 
has  put  into  the  power  of  another  to  accept  or  refuse. 

Where  there  is  no  such  commission,  if  another,  to 
whom  the  promise  was  not  directly  made,  accepts  it  with 
the  consent  of  the  promiser,  the  promise  will  be  so  far 
binding,  that  the  promiser  will  not  be  at  liberty  to 
revoke  it,  before  the  person,  in  whose  favour  it  was 
made  has  ratified,  and  afterwards  chosen  to  release  the 
engagement.  Yet,  in  the  mean  time,  the  accepter  can- 
not release  it,  as  having  derived  no  peculiar  right  from 
it  himself,  but  only  been  used  as  an  instrument  in  pro- 
moting the  kind  intentions  and  good  faith  of  the  promiser. 
The  promiser  therefore  himself,  by  revoking  it,  is  not 
doing  violence  to  the  perfect  right  of  another,  but  only 
acting  in  contradiction  to  his  own  good  faith. 

XIX.  From  what   has    been   said   before,  it   is  easy  to 
conceive  what  opinion  ought  to  be  entertained  of  a  bur- 
densome   condition    annexed    to    a    promise.     For  it  may 
be   annexed    at    any  time,  till    a   promise  has  been  com- 
pleted by  acceptance,  or   an   irrevocable    pledge  to  fulfil 
it  has  been  given.     But  the  condition  of  a  burden  annexed 
to  a  favour  intended   to   be    conferred  upon   a  third  per- 
son, through   the   medium   of    any  one,  may  be   revoked 
before    the    person   has    confirmed   it   by  his   acceptance. 
On  this  point  there  is   great  difference   of  opinion.     But 
upon  impartial   consideration   the   natural   equity  of    any 
case    may   be   easily   seen   without   any   great  length   of 
arguments. 

XX.  XXI.  XXII.  Another  point  of  discussion  relates  to 
the  validity  of  an  erroneous  promise,    when   the   person, 
who  made  it,  upon  being  apprised  of  his  error  is  willing 
to  adhere  to    his    engagement.     And    the    same   inquiry 


THE   RIGHTS   OF   WAR   AND   PEACE  143 

applies  to  promises,  which  ,  arising  out  of  fear  or  any  other 
such  motive,  are  prohibited  by  the  civil  law.  What,  it 
may  be  asked,  will  become  of  these  promises,  if  that  fear, 
or  that  motive  has  been  removed  ? 

To  confirm  such  obligations,  some  think  an  internal 
consent  of  the  mind  alone  in  conjunction  with  some  pre- 
vious external  act  is  sufficient.  Others  disapprove  of  this 
opinion,  because  they  do  not  admit  that  an  external  act 
is  a  real  sign  of  a  subsequent  intention.  Therefore  they 
require  an  express  repetition  of  the  promise  and  accept- 
ance. Between  these  two  opinions,  the  truth  is  most 
likely  to  be  found.  There  may  be  an  external  act  ex- 
pressive of  a  promise,  though  unaccompanied  with  words ; 
where  one  party's  accepting  and  retaining  a  gift,  and  the 
other's  relinquishing  his  right  in  it  are  sufficient  to  con- 
stitute, a  full  consent. 

To  prevent  civil  laws  from  being  confounded  with  nat- 
ural justice,  we  must  not  omit  noticing,  in  this  place, 
that  promises  though  founded  in  no  EXPRESS  motive,  are 
not,  any  more  than  gifts,  void  by  the  law  of  nature. 

Nor  is  a  person  who  has  engaged  for  another's  per- 
forming any  thing,  bound  to  pay  damages  and  interest 
for  neglect,  provided  he  has  done  every  thing  that  was 
necessary  on  his  part  towards  obtaining  its  accomplish- 
ment. Unless  the  express  terms  of  the  agreement,  or  the 
nature  of  the  business  require  a  stricter  obligation,  posi- 
tively declaring  that,  under  all  circumstances  whatever, 
the  thing  shall  be  performed. 


CHAPTER    XII. 
ON  CONTRACTS. 

Human  actions  divided  into  simple  or  mixed  —  Gratuitous,  or  accom- 
panied with  mutual  obligation  —  Acts  by  way  of  exchange,  adjust- 
ment of  what  is  to  be  given  or  done — Partnership  —  Contracts — 
Previous  equality  —  As  to  knowledge  of  all  circumstances — As  to 
freedom  of  consent,  requisite  in  contracts  of  exchange,  of  sale,  of 
commission  and  loan  —  Price  of  things  in  what  manner  to  be  rated 
—  Transfer  of  property  by  sale  —  What  kind  contrary  to  the  law  of 
nature  —  Money  —  Its  use  as  the  standard  value  of  all  things  —  No 
abatement  in  the  rent  or  hire  of  a  thing  on  account  of  ordinary  acci- 
dents—  Increase  or  diminution  of  just  salaries — Usury,  by  what 
law  forbidden  —  Interest  not  coming  under  the  name  of  usury  — In- 
surance —  Partnerships  of  Trade,  Naval  Associations  —  Inequality  in 
the  terms  of  a  contract  no  way  repugnant  to  the  law  of  nations. 

I.  and  II.  OF  ALL  human  actions,  wherein  the  interest 
of  others  is  concerned,  some  are  simple,  and  some  are 
mixed.  In  those  of  the  former  description  all  service 
is  purely  gratuitous,  but  in  the  latter  it  is  a  traffic  of 
exchange.  In  the  one  case  the  service  is  granted  with- 
out a  requital,  but  in  the  other  it  is  accompanied  with 
an  obligation  on  both  sides.  Gratuitous  services  are  either 
immediate  in  their  effect,  or  to  take  place  at  some  future 
time.  A  beneficial  service  may  be  said  to  be  immedi- 
ately performed,  when  it  confers  an  advantage,  to  which 
the  person  so  benefitted  has  no  direct  or  absolute  right. 
As  a  gift  transfers  property,  where  there  is  no  previous 
right.  A  subject,  which  has  been  already  discussed.  And 
promises  may  be  said  to  relate  to  some  future  gift,  or 
action,  of  which  a  full  and  sufficient  explanation  has  be- 
fore been  given. 

Services  accompanied  with  mutual  obligation  are  those 
where  the  use  of  a  thing  is  allowed  to  any  one  without 
a  complete  alienation,  or  where  labour  is  given  in  ex- 
pectation of  some  valuable  consideration.  Under  the 
first  of  these  heads  we  may  reckon  the  loan  and  use  of 
all  consumable  or  inconsumable  property:  and  under  the 
latter  we  may  place  all  commissions  to  transact  business, 
or  all  trusts  to  preserve  the  property  of  another.  Simi- 
lar to  which  are  all  promises  of  something  to  be  done, 
except  that  they  regard  a  future  time.  And  in  this  view 
(J44) 


THE   RIGHTS  OF  WAR  AND   PEACE  145 

we  may   consider   all   the   actions,  which   are  now   to  be 
explained. 

III.  In  all  acts  of  exchange,  there  is  either  an  adjust- 
ment of  shares,  or  the  profits  are  regarded  as  a  common 
stock.  And  such  adjustments  are  made  by  the  Roman 
Lawyers  in  the  following  terms,  <(I  give  this  to  receive 
that  in  return,  I  do  this  in  order  for  you  to  do  that,  or 
I  do  this  for  you  to  give  me  that."*  But  the  Romans 
exclude  from  that  adjustment  certain  kinds  of  contracts, 
which  they  call  EXPRESS  ENGAGEMENTS.  Not  because  they 
are  entitled  to  any  such  peculiar  name  more  than  the 
simple  acts  of  exchange  already  mentioned:  but  because 
from  frequent  use  they  have  naturally  derived  a  char- 
acter similar  to  that  of  the  original  contract,  from  which 
they  are  named,  though  they  are  not  attended  exactly 
with  the  same  circumstances,  nor  expressed  directly  in 
the  same  terms.  Whereas  in  other  contracts  less  fre- 
quently in  use,  the  form  was  confined  to  an  exact  state- 
ment of  all  the  circumstances  of  the  case.  An  action 
upon  which  was  therefore  called  by  the  Roman  law  an 

ACTION    IN    PRESCRIBED    WORDS. 

For  the  same  reason,  if  those  contracts,  which  are  in 
general  use,  be  accompanied  with  any  of  the  requisite 
formalities,  as  in  a  bargain  or  sale,  if  the  price  had  been 
agreed  upon,  though  no  part  of  the  agreement  had  been 
performed  by  either  of  the  parties,  the  civil  law  en- 
forced an  obligation  to  fulfil  them.  But  as  it  considers 
those  contracts  which  are  seldom  used,  more  in  the  light 
of  voluntary  engagements,  depending  upon  the  good  faith 
of  the  respective  parties,  than  upon  legal  obligation,  it 
leaves  both  sides  at  liberty  to  relinquish  them  at  any 
time  prior  to  their  being  naturally  performed. 

Distinctions  of  this  kind  are  unknown  to  the  law  of 
nature,  which  gives  SIMPLE  AGREEMENTS  equal  authority 
with  those,  that  are  included  by  civilians  in  the  class  of 
EXPRESS  CONTRACTS.  And  on  the  score  of  antiquity  their 
pretensions  are  far  superior.  It  is  therefore  perfectly 
conformable  to  the  principles  of  nature  to  reduce  the 
adjustment  of  all  agreements,  without  any  regard  to  the 
distinction  between  SIMPLE  and  EXPRESS  CONTRACTS,  to 
the  three  species  already  named.  Thus,  for  instance, 

*  From  this  simple  origin  of  barter,  and  exchange  of  things  have 
arisen  all  the  various  transactions  of  commerce.      And  what  was  at 
first  an  act  of  necessity  between  individuals,  has  proved  an  inexhausti- 
ble source  of  wealth  and  prosperity  to  nations. 
10 


146  HUGO   GROTIUS 

one  thing  is  given  for  another,  which  constitutes  barter, 
the  most  ancient  kind  of  traffic;  the  next  step  in  the 
progress  of  commercial  intercourse  is  where  one  kind  of 
money  is  given  for  another,  a  transaction  which  by  mer- 
chants is  called  exchange;  and  a  third  species  of  contract 
is  where  money  is  given  for  any  thing,  as  in  the  acts  of 
selling  and  buying.  Or  the  USE  of  one  thing  may  be  given 
for  that  of  another;  money  also  may  be  given  for  the 
USE  of  a  thing,  which  last  method  constitutes  the  acts  of 
letting  and  hiring. 

The  term  use  is  to  be  understood  here  as  applied  not 
only  to  the  bare  unproductive  use  of  a  thing,  but  to  that 
which  is  attended  with  profit,  whether  it  be  temporary, 
personal,  hereditary  or  circumscribed,  as  was  the  case 
among  the  Hebrews  with  regard  to  transfers,  which  could 
be  made  for  no  longer  a  time  than  till  the  year  of  Jubi- 
lee. The  very  essence  of  a  loan  consists  in  a  return  of 
the  same  kind  of  thing  after  a  stated  period.  A  return 
which  can  take  place  only  in  things  regulated  by  weight, 
number,  or  measure,  whether  it  be  in  commodities  or 
money.  But  the  exchange  of  labour  branches  out  into 
various  kinds  of  recompence  or  return.  As,  for  instance, 
a  person  gives  his  labour  for  money,  which  in  the  daily 
transactions  of  life  is  called  hire  or  wages:  where  one 
undertakes  to  indemnify  another  for  accidental  losses  or 
damages,  it  is  called  insurance:  a  species  of  contract 
scarce  known  to  the  ancients,  but  now  forming  a  very  im- 
portant branch  in  all  mercantile  and  maritime  concerns. 

IV.  Acts  of  communication  are  those,  where  each  con- 
tributes a  share  to  the  joint  stock.     Perhaps  on  one  side, 
money,  and  on  the  other,  skill  and  labour  may  be  given. 
But  in  whatever  way  these  concerns  are  regulated,  they 
come  under  the  denomination  of  partnerships.     With  this 
class  we  may  rank  the  alliances  of  different  states  in  war. 
And  of  the  same  description  are  those  naval  associations 
of  individuals,  so  frequently  formed  in  Holland   for  pro- 
tection against  pirates  or  other  invaders,  which  is  gener- 
ally called  an  ADMIRALTY,  and  to  which  the  Greeks  gave 
the  name  of  a  joint  fleet. 

V.  and  VI.  Now  mixed  actions  are  either  such  in  them- 
selves,  or   made    so   by  some   adventitious  circumstance. 
Thus  if  I  knowingly  give  one  person  a  greater  price  for 
a  thing  than  I  can  purchase  it  for  of  another,  the  excess 
of  price  may  be  considered  partly  as  a  gift,  and  partly  as 
a  purchase.     Or  if  I  engage  a  goldsmith  to  make  me  any 


THE   RIGHTS   OF  WAR   AND   PEACE  147 

article  with  his  own  materials,  the  price  which  I  give  will 
be  partly  a  purchase,  and  partly  wages.  The  feudal  sys- 
tem too  might  be  considered  as  a  train  of  mixed  contracts. 
Where  the  grant  of  the  fee  might  be  considered  as  a  bene- 
ficial act;  but  the  military  service  required  by  the  Lord, 
in  return  for  his  protection,  gave  the  fee  the  nature  of  a 
contract,  where  a  person  did  one  thing  expecting  for  it 
the  performance  of  another.  But  if  any  payment  is  at- 
tached to  it  by  way  of  acknowledgement,  it  partakes  of 
the  nature  of  a  quit  rent.  So  money  sent  to  sea  by  way 
of  venture  is  something  compounded  of  a  contract,  of  a 
loan,  and  of  an  insurance. 

VII.  All   acts    beneficial   to   others,  except  those    that 
are  purely   gratuitous,  come    under  the  denomination  of 
contracts. 

VIII.  In    all   contracts,    natural    justice    requires    that 
there  should  be  an  equality  of  terms:  insomuch  that  the 
aggrieved  party  has  an  action  against  the  other  for  over- 
reaching him.     This   equality  consists   partly  in  the  per- 
formance,   and    partly    in    the    profits    of    the    contract, 
applying  to   all   the   previous   arrangements,    and   to  the 
essential  consequences  of  the  agreement. 

IX.  As  to  an  equality  of  terms  previous  to  the  contract, 
it    is    evident    that   a    seller    is   bound    to   discover    to    a 
purchaser   any   defects,  which   are    known    to    him,  in    a 
thing   offered   for    sale;   a   rule   not   only   established  by 
civil    laws,    but  strictly  conformable   to  natural  justice. 
For  the  words  of  agreement  between  contracting  parties 
are  even  stronger  than  those,  on  which  society  is  founded. 
And  in  this  manner   may  be   explained   the   observation 
of  Diogenes  the  Babylonian,  who  in  discussing  this  topic 
said,  it  is  not  every  degree  of  silence,  which  amounts  to 
concealment;  nor  is   one   person  bound   to  disclose  every 
thing,  which   may   be    of  service   to   another.     Thus  for 
instance,  a  man  of  science  is  not  strictly  bound  to  com- 
municate to  another  that  knowledge,  which  might  redound 
to   his   advantage.     For   contracts,  which    were    invented 
to  promote  a  beneficial   intercourse   among  mankind,  re- 
quire    some   closer   and   more   intimate   connection   than 
bare  good-will  to  enforce  their   obligation.     Upon   which 
Ambrose    has    justly    remarked,     "that,  in  contracts,  the 
faults  of  things  exposed  to  sale  ought  to  be  made  known, 
of  which  unless  the   seller  has   given  intimation,  though 
he  may  have   transferred  the  right  of  property  by  sale, 
yet  he  is  liable  to  an  action  of  fraud. w 


148  HUGO   GROTIUS 

But  the  same  cannot  be  said  of  things  not  coming 
under  the  nature  of  contracts.  Thus  if  any  one  should 
sell  his  corn  at  a  high  price,  when  he  knows  that  many 
ships  laden  with  grain  are  bound  for  that  place,  though 
it  would  be  an  act  of  kindness  in  him  to  communicate 
such  intelligence  to  the  purchasers,  and  though  no  ad- 
vantage could  be  derived  to  him,  from  withholding  the 
communication,  but  at  the  expence  of  charity,  yet  there 
is  nothing  unjust  in  it,  or  contrary  to  the  general  rules 
of  dealing.  The  practice  is  vindicated  by  Diogenes  in 
the  passage  of  Cicero  alluded  to,  he  says,  <(I  carried  my 
commodities  and  offered  them  to  sale,  in  selling  them  I 
demanded  no  greater  price  than  others  did ;  if  the  supply 
had  been  greater  I  would  have  sold  them  for  less,  and 
where  is  the  wrong  done  to  any  one  ? J)  The  maxim  of 
Cicero  therefore  cannot  generally  be  admitted,  that, 
knowing  a  thing  yourself,  to  wish  another,  whose  inter- 
est it  is  to  know  it  also,  to  remain  ignorant  of  it,  merely 
for  the  sake  of  your  own  advantage,  amounts  to  a  fraud- 
ulent concealment.  By  no  means;  for  that  only  is  a 
fraudulent  concealment  which  immediately  affects  the 
nature  of  the  contract :  as  for  instance,  in  selling  a  house, 
to  conceal  the  circumstance  of  its  being  infected  with 
the  plague,  or  having  been  ordered  by  public  authority 
to  be  pulled  down.  But  it  is  unnecessary  to  mention, 
that  the  person,  with  whom  a  seller  treats,  ought  to  be 
apprised  of  every  circumstance  attending  the  thing 
offered  for  sale;  if  it  be  lands,  whether  the  tenure  be 
subject  to  a  rent-charge,  or  service  of  any  kind,  or  be 
entirely  free. 

X.  and  XL  Nor  is  the  equality  that  has  been  explained 
confined  solely  to  the  communication  of  all  the  circum- 
stances of  the  case  to  the  contracting  parties,  but  it  in- 
cludes also  an  entire  freedom  of  consent  in  both. 

In  the  principal  act  itself,  the  proper  equality  requires 
that  no  more  should  be  demanded  by  either  party  than 
what  is  just.  Which  can  scarce  have  a  place  in  gratui- 
tous acts.  To  stipulate  for  a  recompence  in  return  for  a 
loan,  or  for  the  service  of  labour  or  commission  is  doing 
no  wrong,  but  constitutes  a  kind  of  mixed  contract,  par- 
taking of  the  nature  of  a  gratuitous  act,  and  an  act  of  ex- 
change. And  in  all  acts  of  exchange,  this  equality  is  to 
be  punctually  observed.  Nor  can  it  be  said  that  if  one 
party  promises  more,  it  is  to  be  looked  upon  as  a  gift. 
For  men  never  enter  into  contracts  with  such  intentions, 


THE   RIGHTS  OF  WAR  AND   PEACE  149 

nor  ought  the  existence  of  such  intentions  ever  be  pre- 
sumed, unless  they  evidently  appear.  For  all  promises 
or  gifts,  in  these  cases,  are  made  with  an  expectation  of 
receiving  an  equivalent  in  return.  (<  When,  in  the  words 
of  Chrysostom,  in  all  bargains  and  contracts,  we  are  anx- 
ious to  receive  MORE  and  give  LESS  than  is  due,  what  is 
this  but  a  species  of  fraud  or  robbery?"  The  writer  of 
the  life  of  Isidorus  in  Photius,  relates  of  Hermias,  that 
when  any  thing,  which  he  wished  to  purchase  was  valued 
at  too  low  a  rate,  he  made  up  the  deficiency  of  the  price, 
thinking  that  to  act  otherwise  was  a  species  of  injustice, 
though  it  might  escape  the  observation  of  others.  And 
in  this  sense,  may  be  interpreted  the  law  of  the  He- 
brews. 

XII.  There  remains   another   degree  of  equality  to  be 
considered,  arising  out  of   the    following   case.      It  may 
happen  in  contracts   that   although  nothing  is  concealed, 
which   ought  to  be   made  known,  nor  more  exacted  or 
taken  by  one   party  than  is  due,  yet  there  may  be  some 
inequality  without    any  fault    in    either  of  the    parties. 
Perhaps,  for  instance  there  might  be  some  unknown  de- 
fect in  the  thing,  or  there  might  be  some  mistake  in  the 
price.      Yet,    in    such    cases,    to   preserve    that   equality, 
which  is  an  essential  requisite  in  all  contracts,  the  party 
suffering  by  -such  defect  or  mistake,  ought  to  be  indem- 
nified by  the  other.     For  in  all  engagements  it  either  is, 
or  ought  to  be  a  standing  rule,  that  both  parties  should 
have  equal  and  just  advantages. 

It  was  not  in  every  kind  of  equality  that  the  Roman 
law  established  this  rule,  passing  over  slight  occasions,  in 
order  to  discourage  frequent  and  frivolous  litigation.  It 
only  interposed  its  judicial  authority  in  weighty  matters, 
where  the  price  exceeded  the  just  value  by  one  half. 
Laws  indeed,  as  Cicero  has  said,  have  power  to  compel,  or 
restrain  men,  whereas  philosophers  can  only  appeal  to 
their  reason  or  understanding.  Yet  those,  who  are  not 
subject  to  the  power  of  civil  laws  ought  to  comply  with 
whatever  reason  points  out  to  them  to  be  just:  So  too 
ought  they,  who  are  subject  to  the  power  of  human 
laws,  to  perform  whatever  natural  and  divine  justice  re- 
quires, even  in  cases,  where  the  laws  neither  give  nor 
take  away  the  right,  but  only  forbear  to  enforce  it  for 
particular  reasons. 

XIII.  There   is   a   certain    degree   of   equality,  too,  in 
beneficial  or  gratuitous  acts,  not  indeed  like  that  prevail- 


i5o  HUGO   GROTIUS 

ing  in  contracts  of  exchange,  but  proceeding  upon  a  sup- 
position of  the  hardship,  that  any  one  should  receive 
detriment  from  voluntary  services,  which  he  bestows. 
For  which  reason  a  voluntary  agent  ought  to  be  indem- 
nified for  the  expence  or  inconvenience,  which  he  incurs, 
by  undertaking  the  business  of  another.  A  borrower  too 
is  bound  to  repair  a  thing  that  has  been  damaged  or 
destroyed.  Because  he  is  bound  to  the  owner  not  only 
for  the  thing  itself,  by  virtue  of  the  property  which  he 
retains  in  it,  but  he  owes  a  debt  of  gratitude  also  for 
the  favour  of  the  loan;  unless  it  appears  that  the  thing 
so  lent  would  have  perished,  had  it  even  remained  in 
possession  of  the  owner  himself.  In  this  case,  the  owner 
loses  nothing  by  the  loan.  On  the  other  hand,  the  de- 
positary has  received  nothing  but  a  trust.  If  the  thing 
therefore  is  destroyed,  he  cannot  be  bound  to  restore 
what  is  no  longer  in  existence,  nor  can  he  be  required 
to  make  a  recompence,  where  he  has  derived  no  advan- 
tage; for  in  taking  the  trust  he  did  not  receive  a  favour, 
but  conferred  one.  In  a  pawn,  the  same  as  in  a  thing 
let  out  for  hire,  a  middle  way  of  deciding  the  obligation 
may  be  pursued,  so  that  the  person  taking  it  is  not 
answerable,  like  a  borrower,  for  every  accident,  and  yet 
he  is  obliged  to  use  greater  care,  than  a  bare  depositary, 
in  keeping  it  safe.  For  though  taking  a  pledge  is  a 
gratuitous  acceptance,  it  is  followed  by  some  of  the  con- 
ditions of  a  contract.  All  these  cases  are  conformable  to 
the  Roman  law,  though  not  originally  derived  from 
thence,  but  from  natural  equity.  Rules,  all  of  which 
may  be  found  among  other  nations.  And,  among  other 
works,  we  may  refer  to  the  third  book  and  forty-second 
chapter  of  the  GUIDE  FOR  DOUBTFUL  CASES,  written  by 
Moses  Maimonides,  a  Jewish  writer. 

Upon  the  same  principles  the  nature  of  all  other  con* 
tracts  may  be  explained;  but  the  leading  features  in  those 
of  certain  descriptions  seemed  sufficient  for  a  treatise 
like  the  present. 

XIV.  The  general  demand  for  any  thing,  as  Aristotle 
has  clearly  proved,  constitutes  the  true  measure  of  its 
value,  which  may  be  seen  particularly  from  the  practice 
prevailing  among  barbarous  nations  of  exchanging  one 
thing  for  another.  But  this  is  not  the  only  standard: 
for  the  humours  and  caprice  of  mankind,  which  dictate 
and  controul  all  regulations,  give  a  nominal  value  to  many 
superfluities.  It  was  luxury,  says  Pliny,  that  first  dis- 


THE   RIGHTS   OF   WAR  AND   PEACE  151 

covered  the  value  of  pearls,  and  Cicero  has  somewhere 
observed,  that  the  worth  of  such  things  can  only  be 
estimated  by  the  desires  of  men. 

But  on  the  other  hand,  it  happens  that  the  plentiful 
supply  of  necessaries  lowers  their  price.  This  Seneca,  in 
the  isth  chapter  of  his  sixth  book  on  benefits,  proves  by 
many  instances,  which  he  concludes  with  the  following 
observation,  <(  the  price  of  every  thing  must  be  regulated 
by  the  market,  and  notwithstanding  all  your  praises,  it 
is  worth  nothing  more  than  it  can  be  sold  for."  To 
which  we  may  add  the  authority  of  Paulus  the  Lawyer, 
who  says,  the  prices  of  things  do  not  depend  upon  the 
humours  and  interest  of  individuals,  but  upon  common 
estimation,  that  is,  as  he  explains  himself  elsewhere, 
according  to  the  worth  which  they  are  of  to  all. 

Hence  it  is  that  things  are  valued  in  proportion  to 
what  is  usually  offered  or  given  for  them,  a  rule  ad- 
mitting of  great  variation  and  latitude,  except  in  certain 
cases,  where  the  law  has  fixed  a  standard  price.  In  the 
common  price  of  articles,  the  labour  and  expence  of  the 
merchant  in  procuring  them  is  taken  into  the  account, 
and  the  sudden  changes  so  frequent  in  all  markets  depend 
Upon  the  number  of  buyers,  whether  it  be  great  or 
small,  and  upon  the  money  and  marketable  commodities, 
whether  they  be  plentiful  or  scarce. 

There  may  indeed  be  casualties,  owing  to  which  a 
thing  may  be  lawfully  bought  or  sold  above  or  below 
the  market  price.  Thus  for  instance,  a  thing  by  being 
damaged  may  have  lost  its  original  or  common  value,  or 
that,  which  otherwise  would  not  have  been  disposed  of, 
may  be  bought  or  sold  from  some  particular  liking  or 
aversion.  All  these  circumstances  ought  to  be  made 
known  to  the  contracting  parties.  Regard  too  should  be 
had  to  the  loss  or  gain  arising  from  delay  or  prompt- 
ness of  payment. 

XV.  In  buying  and  selling  we  must  observe,  that  the 
bargain  is  completed  from  the  very  moment  of  the  con- 
tract, even  without  delivery,  and  that  is  the  most  simple 
way  of  dealing.  Thus  Seneca  says,  that  a  sale  is  a  trans- 
fer of  one's  right  and  property  in  a  thing  to  another, 
which  is  done  in  all  exchanges.  But  if  it  be  settled  that 
the  property  shall  not  be  transferred  immediately,  still 
the  seller  will  be  bound  to  convey  it  at  the  stated 
period,  taking  in  the  mean  time  all  the  profits  and 
losses. 


152  HUGO   GROTIUS 

Whereas  the  completion  of  bargain  and  sale,  by  giving 
the  purchaser  a  right  of  possession  and  ejectment,  and 
conveying  to  him  the  hazard  with  all  the  profits  of  the 
property,  even  before  it  is  transferred,  are  regulations  of 
the  civil  law  not  universally  observed.  Indeed  some 
legislators  have  made  the  seller  answerable  for  all  acci- 
dents and  damages,  till  the  actual  delivery  of  possession 
is  made,  as  Theophrastus  has  observed  in  a  passage  in 
Stobaeus,  under  the  title  of  laws,  where  the  reader  will 
find  many  customs,  relating  to  the  formalities  of  sale,  to 
earnest,  to  repentance  of  a  bargain,  very  different  from 
the  rules  of  the  Roman  law.  And  among  the  Rhodians, 
Dion  Prusaeensis  informs  us  that  all  sales  and  contracts 
were  confirmed  by  being  entered  in  a  public  register. 

We  must  observe  too  that,  if  a  thing  has  been  twice 
sold,  of  the  two  sales  the  one  is  valid,  where  an  imme- 
diate transfer  of  the  property  has  been  made,  either  by 
delivery  of  possession,  or  in  any  other  mode.  For  by  this 
means  the  seller  gives  up  an  absolute  right,  which  could 
not  pass  by  a  promise  alone. 

XVI.  It  is  not  every  kind  of  monopoly  that  amounts 
to  a  direct  violation  of  the  laws  of  nature.  The  Sover- 
eign power  may  have  very  just  reasons  for  granting 
monopolies,  and  that  too  at  a  settled  price:  a  noble  in- 
stance of  which  we  find  in  the  history  of  Joseph,  who 
governed  Egypt  under  the  auspices  of  Pharaoh.*  So  also 
under  the  Roman  government  the  people  of  Alexandria, 
as  we  are  informed  by  Strabo,  enjoyed  the  monopoly  of 
all  Indian  and  Ethiopian  goods. 

A  monopoly  also  may,  in  some  cases,  be  established 
by  individuals,  provided  they  sell  at  a  reasonable  rate. 
But  all  combinations  to  raise  the  necessary  articles  of 
life  to  an  exorbitant  rate,  or  all  violent  and  fraudulent 
attempts  to  prevent  the  market  from  being  supplied,  or 
to  buy  up  certain  commodities,  in  order  to  enhance  the 
price,  are  public  injuries  and  punishable  as  such.f  Or  in- 

*  For  the  necessity  of  Monopolies  in  certain  cases,  see  the  note  on 
the  xxi.  sect,  of  the  2nd.  chapter  of  this  book. 

fThe  Dutch  in  order  to  secure  to  themselves  the  monopoly  of  the 
spice-trade  have  frequently  destroyed  all  the  productions  of  the  spice 
islands  beyond  what  was  necessary  for  their  own  supply,  By  the  just 
policy  of  the  laws  of  England,  «  combinations  among  victuallers  or 
artificers,  to  raise  the  price  of  provisions,  or  any  commodities,  or  the 
rate  of  labour,  are  in  many  cases  severely  punished  by  particular 
statutes;  and,  in  general,  by  statute  2  and  3  Edwd.  VI.  c.  15,  with 
the  forfeiture  of  10  L,  or  twenty  days  imprisonment  with  an  allowance 


THE   RIGHTS  OF   WAR  AND   PEACE  153 

deed  ANY  WAY  of  preventing-  the  importation  of  goods,  or 
buying  them  up  in  order  to  sell  them  at  a  greater  rate 
than  usual,  though  the  price,  UNDER  SOME  PARTICULAR  CIR- 
CUMSTANCES, may  not  seem  unreasonable,  is  fully  shewn  by 
Ambrose  in  his  third  book  of  Offices  to  be  a  breach  of 
charity;  though  it  come  not  directly  under  the  prohibi- 
tion of  laws. 

XVII.  As  to  money,  it  may  be  observed  that   its  uses 
do  not  result   from  any   value    intrinsically   belonging  to 
the  precious  metals,  or  to  the  specific  denomination   and 
shape  of  coin,  but   from  the    general    application    which 
can  be  made  of  it,    as    a    standard   of   payment   for   all 
commodities.     For  whatever  is  taken  as  a  common  meas- 
ure of  all  other  things,  ought  to   be  liable,  in  itself,  to 
but  little  variation.     Now  the  precious  metals  are  of  this 
description,  possessing  nearly  the  same  intrinsic  value  at 
all  times  and  in  all  places.     Though   the   nominal   value 
of  the  same  quantity  of  gold  and  silver,  whether  paid  by 
weight  or  coin  will   be  greater  or  less,  in  proportion   to 
the  abundance  or  scarcity  of   the  things  for  which  there 
is  a  general  demand. 

XVIII.  Letting   and   hiring,  as    Caius  has   justly   said, 
come  nearest  to  selling  and  buying,  and  are  regulated  by 
the  same   principles.     For   the    price  corresponds   to   the 
rent  or  hire,  and  the  property  of  a  thing  to  the  liberty 
of  using  it.     Wherefore  as  an  owner  must   bear  the  loss 
of   a  thing  that   perishes,  so  a  person   hiring  a    thing  or 
renting  a  farm  must   bear   the   loss  of   all  ordinary  acci- 
dents, as  for  instance,  those  of  barrenness  or   any  other 
cause,  which    may   diminish    his    profits.*     Nor   will    the 

of  only  bread  and  water,  for  the  first  offence ;  20  L  or  the  pillory  for 
the  second ;  and  40  1.  for  the  third,  or  else  the  pillory,  loss  of  one  ear, 
and  perpetual  infamy.  In  the  same  manner,  by  a  constitution  of  the 
Emperor  Zeno,  all  monopolies  and  combinations  to  keep  up  the  price 
of  merchandise,  provisions,  or  workmanship,  were  prohibited,  upon 
pain  of  forfeiture  of  goods  and  perpetual  banishment. M — Blackst.  Com. 
b.  iv.  c.  12.  p.  159. —  Also  the  39  Geo.  III.  c.  81,  enacted,  that  every 
person  combining  with  others  to  advance  their  wages,  or  decrease  the 
quantity  of  work,  or  any  way  to  affect  or  controul  those  who  carried 
on  any  manufacture  or  trade  in  the  conduct  and  management  thereof, 
might  be  convicted  before  one  justice  of  the  peace,  and  might  be 
committed  to  the  common  gaol  for  any  time  not  exceeding  three  cal- 
endar months,  or  be  kept  to  hard  labour  in  the  house  of  correction  for 
two  months. — Christian's  notes  to  Blackstone  on  the  same  place. 

* (( It  is  possible  that  an  estate  or  a  house  may,  during  the  term  of 
a  lease,  be  so  increased  or  diminished  in  its  value,  as  to  become 
worth  much  more,  or  much  less,  than  the  rent  agreed  to  be  paid  for 


154  HUGO   GROTIUS 

owner,  on  that  account,  be  the  less  entitled  to  the  stipu- 
lated price  or  rent,  because  he  gave  the  other  the  right 
of  enjoyment,  which  at  that  time  was  worth  so  much, 
unless  it  was  then  agreed  that  the  value  should  depend 
upon  such  contingencies. 

If  an  owner,  when  the  first  tenant  has  been  prevented 
from  using  a  thing,  shall  have  let  it  to  another,  all  the 
profits  accruing  from  it  are  due  to  the  first  tenant,  for  it 
would  not  be  equitable  that  the  owner  should  be  made 
richer  by  what  belonged  to  another. 

XIX.  The  next  topic,  that  comes  under  consideration, 
is  the  lawfulness  of  taking  interest  for  the  use  of  a  con- 
sumable thing;  the  arguments  brought  against  which 
appear  by  no  means  such  as  to  command  our  assent. 
For  as  to  what  is  said  of  the  loan  of  consumable  prop- 
erty being  a  gratuitous  act,  and  entitled  to  no  return, 
the  same  reasoning  may  apply  to  the  letting  of  incon- 
sumable property  for  hire,  requiring  a  recompence  for 
the  use  of  which  is  never  deemed  unlawful,  though  it 
gives  the  contract  itself  a  different  denomination. 

Nor  is  there  any  more  weight  in  the  objection  to  tak- 
ing interest  for  the  use  of  money,  which  in  its  own  na- 
ture is  barren  and  unproductive.  For  the  same  may  be 
said  of  houses  and  other  things,  which  are  unproductive 
and  unprofitable  without  the  industry  of  man.* 

There  is  something  more  specious  in  the  argument, 
which  maintains,  that,  as  one  thing  is  here  given  in  re- 
turn for  another,  and  the  use  and  profits  of  a  thing  can- 
it.  In  some  of  which  cases  it  may  be  doubted,  to  whom,  of  natural 
right,  the  advantage  or  disadvantage  belongs.  The  rule  of  justice 
seems  to  be  this:  If  the  alteration  might  be  EXPECTED  by  the  parties, 
the  hirer  must  take  the  consequence;  if  it  could  not,  the  owner.  An 
orchard,  or  a  vineyard,  or  a  mine,  or  a  fishery,  or  a  decoy,  may  this 
year  yield  nothing  or  next  to  nothing,  yet  the  tenant  shall  pay  his 
rent;  and  if  they  next  year  produce  tenfold  the  usual  profit,  no 
more  shall  be  demanded;  because  the  produce  is  in  its  nature  pre- 
carious, and  this  variation  might  be  expected. » — Paley's,  Mor.  Phil, 
vol.  1.  p.  155,  156. 

*  The  following  passage  from  Judge  Blackstone  will  both  elucidate 
the  meaning  and  support  the  reasoning  of  our  author.  (( Though 
money  was  originally  used  only  for  the  purposes  of  exchange,  yet  the 
laws  of  any  state  may  be  well  justified  in  permitting  it  to  be  turned 
to  the  purposes  of  profit,  if  the  convenience  of  society  (the  great  end 
for  which  money  was  invented)  shall  require  it.  And  that  the  allow- 
ance of  moderate  interest  tends  greatly  to  the  benefit  of  the  public, 
especially  in  a  trading  country,  will  appear  from  that  generally  ac- 
knowledged principle,  that  commerce  cannot  subsist  without  mutual 


THE   RIGHTS  OF   WAR  AND   PEACE  155 

not  be  distinguished  from  the  thing  itself,  when  the  very 
use  of  it  depends  upon  its  consumption,  nothing  more 
ought  to  be  required  in  return  for  the  use,  than  what  is 
barely  equivalent  to  the  thing  itself. 

But  it  is  necessary  to  remark,  that  when  it  is  said  the 
enjoyment  of  the  profits  of  consumable  things,  whose 
property  is  transferred,  in  the  use,  to  the  borrower  or 
trustee,  was  introduced  by  an  act  of  the  senate,  this  does 
not  properly  come  under  the  notion  of  Usufruct,  which 
certainly  in  its  original  signification  answers  to  no  such 
right.  Yet  it  does  not  follow  that  such  a  right  is  of  no 
value,  but  on  the  contrary  money  may  be  required  for 
surrendering  it  to  the  proprietor.  Thus  also  the  right  of 
not  paying  money  or  wine  borrowed  till  after  a  certain 
time  is  a  thing  whose  value  may  be  ascertained,  the  delay 
being  considered  as  some  advantage.  Therefore  in  a 
mortgage  the  profits  of  the  land  answer  the  use  of  money. 
But  what  Cato,  Cicero,  Plutarch  and  others  allege  against 
usury,  applies  not  so  much  to  the  nature  of  the  thing, 
as  to  the  accidental  circumstances  and  consequences  with 
which  it  is  commonly  attended.* 

XX.  There  are  some  kinds  of  interest,  which  are 
thought  to  wear  the  appearance  of  usury,  and  generally 
come  under  that  denomination,  but  which  in  reality  are 
contracts  of  a  different  nature.  The  five  shillings  com- 
mission which  a  banker,  for  instance,  charges  upon  every 
hundred  pounds,  is  not  so  much  an  interest  in  addition 
to  five  per  cent,  as  a  compensation  for  his  trouble,  and 

and  extensive  credit.  Unless  money  therefore  can  be  borrowed, 
trade  cannot  be  carried  on:  and  if  no  premium  were  allowed  for 
the  hire  of  money,  few  persons  would  care  to  lend  it;  or  at  least 
the  ease  of  borrowing  at  short  warning  (which  is  the  life  of  com- 
merce) would  be  entirely  at  an  end.8 — B.  ii.  ch.  30.  p.  454,  455. 
*«The  Mosaic  law  indeed  prohibited  the  lending  of  money  upon 
usury.  But  this  was  a  political  and  not  a  moral  precept.  It  only 
prohibited  the  Jews  from  taking  usury  of  their  brethren  the  Jews, 
but  in  express  words  permitted  them  to  take  it  of  a  stranger:  which 
proves  that  the  taking  of  moderate  usury,  or  a  reward  for  the  use,  is 
not  an  evil  in  itself,  since  it  was  allowed  where  any  but  an  Israelite 
was  concerned.®  —  Blackst.  Com.  b.  ii.  ch.  30.  p.  454.  The  objec- 
tions made  to  it  by  Cicero  and  others,  our  author  observes,  are 
founded  more  upon  the  consequences  of  usury  than  upon  usury 
itself.  Because  it  deters  men  from  borrowing.  But,  on  the  other 
hand,  if  there  were  no  advantage  attached  to  the  lending  of 
money,  none  would  be  found  willing  to  lend;  consequently  the 
benefits  arising  from  a  facility  of  borrowing  money  to  carry  on 
trade  would  be  defeated. 


156  HUGO  GROTIUS 

for  the  risk  and  inconvenience  he  incurs,  by  the  loan  of 
his  money,  which  he  might  have  employed  in  some  other 
lucrative  way.  In  the  same  manner  a  person  who  lends 
money  to  many  individuals,  and,  for  that  purpose,  keeps 
certain  sums  of  cash  in  his  hands,  ought  to  have  some 
indemnity  for  the  continual  loss  of  interest  upon  those 
sums,  which  may  be  considered  as  so  much  dead  stock. 
Nor  can  any  recompence  of  this  kind  be  branded  with 
the  name  of  usury.  Demosthenes,  in  his  speech  against 
Pantaenetus,  condemns  it  as  an  odious  act  of  injustice,  to 
charge  with  usury  a  man,  who  in  order  to  keep  his  prin- 
cipal undiminished,  or  to  assist  another  with  money, 
lends  out  the  savings  of  his  industry  and  frugal  habits, 
upon  a  moderate  interest. 

XXI.  Those  human  laws,  which   allow  a  compensation 
to  be  made  for  the  use  of  money  or  any  other  thing,  are 
neither  repugnant  to  natural  nor  revealed  law.     Thus  in 
Holland,  where  the  rate  of  interest  upon  common  loans 
was  eight  per  cent,  there  was  no   injustice   in  requiring 
twelve  per  cent  of  merchants;   because   the  hazard  was 
greater.     The    justice   and  reasonableness   indeed  of    all 
these   regulations   must   be   measured    by  the   hazard  or 
inconvenience  of  lending.     For  where  the  recompence  ex- 
ceeds this,  it  becomes  an  act  of  extortion  or  oppression. 

XXII.  Contracts   for   guarding   against    danger,    which 
are  called  insurances,  will  be  deemed  fraudulent  and  void, 
if  the  insurer  knows   beforehand   that  the  thing  insured 
is  already  safe,  or  has   reached  its  place  of   destination, 
and  the  other  party  that  it  is  already  destroyed  or  lost. 
And  that  not  so  much  on  account  of   the   equality  natu- 
rally requisite   in   all   contracts   of   exchange,  as  because 
the  danger  and  uncertainty  is  the  very  essence  of  such  con- 
tract.    Now  the  premium  upon  all  insurances  must  be  reg- 
ulated by  common  estimation.* 

*  « Insurances  being  contracts,  the  very  essence  of  which  consists  in 
observing  the  purest  good  faith  and  integrity,  they  are  vacated  by  any 
the  least  shadow  of  fraud  or  undue  concealment ;  and,  on  the  other  hand, 
being  much  for  the  benefit  and  extension  of  trade,  by  distributing  the 
loss  or  gain  among  a  number  of  adventurers,  they  are  greatly  encour- 
aged and  protected  both  by  common  law  and  acts  of  parliament* — 
Blackst.  Com.  b.  ii.  ch.  30.  p.  460. 

«  The  contract  of  insurance  is  founded  upon  the  purest  principles  of 
morality  and  abstract  justice.  Hence  it  is  necessary  that  the  contract- 
ing parties  should  have  perfectly  equal  knowledge  or  ignorance  of  every 
material  circumstance  respecting  the  thing  insured.  If  on  either  side 
there  is  any  misrepresentation  or  allegatio  falsi,  or  concealment,  or 


THE   RIGHTS  OF   WAR  AND   PEACE  157 

XXIII.  In  trading  partnerships,  where  money  is  con- 
tributed by  both  parties ;  if  the  proportions  be  equal,  the 
profits  and  the  losses  ought  to  be  equal  also.  But  if  they 
be  unequal,  the  profits  and  the  losses  must  bear  the  same 
proportion,  as  Aristotle  has  shewn  at  the  conclusion  of 
the  eighth  book  of  his  Ethics.  And  the  same  rule  will 
hold  good  where  equal  or  unequal  proportions  of  labor 
are  contributed.  Labor  may  be  given  as  a  balance  against 
money,  or  both  labor  and  money  may  be  given,  accord- 
ing to  the  general  maxim  that  one  man's  labour  is  an 
equivalent  for  another  man's  money. 

But  there  are  various  ways  of  forming  these  agree- 
ments. If  a  man  borrows  money  to  employ  his  skill 
upon  in  trading  for  himself,  whether  he  gains  or  loses 
the  whole,  he  is  answerable  to  the  owner  for  the  princi- 
pal. But  where  a  man  unites  his  labor  to  the  capital  of 
another  in  partnership,  there  he  becomes  a  partner  in  the 
principal,  to  a  share  of  which  he  is  entitled.  In  the 
first  of  these  cases  the  principal  is  not  compared  as  a 
balance  against  the  labor,  but  it  is  lent  upon  terms  pro- 
portioned to  the  risk  of  losing  it,  or  the  probable  gains 
to  be  derived  from  it.  In  the  other  case,  the  price  of 
labour  is  weighed,  as  it  were,  against  the  money,  and  the 
party  who  bestows  it,  is  entitled  to  an  equivalent  share 
in  the  capital. 

What  has  been  said  of  labour  may  be  applied  to  voyages, 
and  all  other  hazardous  undertakings.  For  it  is  contrary 
to  the  very  nature  of  partnerships  for  any  one  to  share 
in  the  gain,  and  to  be  exempt  from  the  losses.  Yet  it 
may  be  so  settled  without  any  degree  of  injustice.  For 
there  may  be  a  mixed  contract  arising  out  of  a  contract 
of  insurance  in  which  due  equality  may  be  preserved, 
by  allowing  the  person,  who  has  taken  upon  himself  the 
losses,  to  receive  a  greater  share  of  the  gain  than  he 
would  otherwise  have  done.  But  it  is  a  thing  quite  in- 
admissible that  any  one  should  be  responsible  for  the 
losses  without  partaking  of  the  gains;  for  a  communion 
of  interests  is  so  natural  to  society  that  it  cannot  subsist 
without  it. 

What  has  been  said  by  writers  on  the  civil  law,  that 
the  shares  are  understood  to  be  equal  where  they  are 
not  expressly  named,  is  true  where  equal  quotas  have 

sufpressto  vert,  which  would  in  any  degree  affect  the  premium,  or  the 
terms  of  the  engagement,  the  contract  is  fraudulent  and  absolutely 
void." — Christian's  note  on  the  same  passage. 


i58  HUGO   GROTIUS 

been  contributed.  But  in  a  GENERAL  partnership  the 
shares  are  not  to  be  measured  by  what  may  arise  from 
this  or  that  article,  but  from  the  probable  profits  of  the 
whole. 

XXIV.  In    naval   associations   the   common   motive   of 
utility  is  self-defence  against  pirates:   though   they  may 
sometimes     be    formed   from    less    worthy  motives.      In 
computing  the  losses  to  be  sustained  by  each,  it  is  usual 
to   estimate    the    number  of  men,  the  number  of  ships, 
and  the    quantity   of  merchandise  protected.     And  what 
has  hitherto  been  said  will  be  found  conformable  to  nat- 
ural justice. 

XXV.  Nor  does  the  voluntary*  law  of  nations  appear 
to    make    any    alteration  here.     However,    there    is  one 
exception,    which  is,    that  where   equal  terms  have  been 
agreed  upon,  if  no  fraud  has  been  used,  nor  any  necessary 
information  withheld,  they  shall    be  considered   as  equal 
in  an  external  f  point  of  view.     So  that  no  action  can  be 
maintained  in  a  court  for  such  inequality.     Which  was  the 
case  in  the  civil  law  before  Dioclesian's  constitution.     So 
among  those,  who  are  bound  by  the  law  of  nations  alone, 
there  can  be  no  redress   or  constraint  on  such    account.  J 

•There  is  a  distinction  to  be  observed  between  the  NECESSARY,  and 
the  VOLUNTARY  lawof  nations.  Vattel  defines  the  NECESSARY  law  to  be 
« that  which  is  always  obligatory  on  the  conscience,  and  of  which  a  nation 
ought  never  to  lose  sight  in  the  line  of  conduct  she  is  to  pursue  in  order 
to  fulfil  her  duty,  but  when  there  is  a  question  of  examining  what  she 
may  demand  of  other  states,  she  must  consult  the  VOLUNTARY  law,  whose 
maxims  are  devoted  to  the  safety  and  advantage  of  the  universal  society 
of  mankind.8 — Prelim,  sect  28. 

fThe  writer  quoted  in  the  preceding  note  defines  that  obligation 
« to  be  INTERNAL,  which  binds  the  conscience,  and  is  deduced  from  the 
rules  of  duty ;  and  that  to  be  EXTERNAL,  which  is  considered  relatively  to 
other  men,  and  produces  some  right  between  them.w — Ibid.  sect.  17. 

\  A  treaty  may  be  more  advantageous  to  one  of  the  contracting  parties 
than  to  the  other,  and  yet  contain  nothing  unjust.  «  Frequently  a  great 
monarch,  wishing  to  engage  a  weaker  state  in  his  interest,  offers  her 
advantageous  conditions,  promises  her  gratuitous  succours,  or  greater 
than  he  stipulates  for  himself;  but  at  the  same  time  he  claims  a  supe- 
riority of  dignity,  and  requires  respect  from  his  ally.  It  is  this  last  par- 
ticular which  renders  THE  ALLIANCE  UNEQUAL:  and  to  this  circumstance 
we  must  attentively  advert ;  for  with  alliances  of  this  nature  we  are  not 
to  confound  those  in  which  the  parties  treat  on  a  footing  of  equality, 
though  the  more  powerful  of  the  allies,  for  particular  reasons,  gives 
more  than  he  receives,  promises  his  assistance  gratis,  without  requir- 
ing gratuitous  assistance  in  his  turn,  or  promises  more  considerable 
succours  or  even  the  assistance  of  all  his  forces:  here  the  alliance 
is  equal,  but  the  treaty  is  unequal,  unless  indeed  we  may  be  allowed 
to  say,  that,  as  the  party  who  makes  the  greater  concessions  has  a 


THE   RIGHTS   OF    WAR   AND   PEACE  159 

And  this  is  the  meaning  of  what  Pomponius  says,  that 
in  a  bargain  and  sale,  one  man  may  NATURALLY  over- 
reach another:  an  allowance  which  is  not  to  be  construed, 
as  a  right,  but  is  only  so  far  a  permission,  that  no  legal 
remedy  can  be  used  against  the  person,  who  is  deter- 
mined to  insist  upon  the  agreement. 

In  this  place,  as  in  many  others,  the  word  natural  sig- 
nifies nothing  more  than  what  is  received  by  general 
custom.  In  this  sense  the  Apostle  Paul  has  said,  that  it 
is  naturally  disgraceful  for  a  man  to  wear  long  hair;  a 
thing,  in  which  there  is  nothing  repugnant  to  nature, 
but  which  is  the  general  practice  among  some  nations. 
Indeed  many  writers,  both  sacred  and  profane,  give  the 
name  of  NATURAL  to  what  is  only  CUSTOMARY  and  HA- 
BITUAL. 

greater  interest  in  concluding  the  treaty,  this  consideration  restores  the 
equality.  Thus,  at  a  time  when  France  found  herself  embarrassed  in  a 
momentous  war  with  the  house  of  Austria,  and  the  cardinal  de  Richelieu 
wished  to  humble  that  formidable  power,  he,  like  an  able  minister,  con- 
cluded a  treaty  with  Gustavus  Adolphus,  in  which  all  the  advantage 
appeared  to  be  on  the  side  of  Sweden.  From  a  bare  consideration  of 
the  stipulations  of  that  treaty,  it  would  have  been  pronounced  an  unequal 
one ;  but  the  advantages  which  France  derived  from  it,  amply  compen- 
sated for  that  inequality.8  —  Vattel,  b.  ii.  ch.  12.  sect.  175.  p.  200,  201. 


CHAPTER    XIII. 
ON  OATHS. 

Efficacy  of  oaths  among  Pagans  —  Deliberation  requisite  in  oaths  — 
The  sense,  in  which  oaths  are  understood  to  be  taken,  to  be  adhered 
to  —  To  be  taken  according  to  the  usual  meaning  of  the  words  — 
The  subject  of  them  to  be  lawful  —  Not  to  counteract  moral  obliga- 
tions —  In  what  sense  oaths  are  an  appeal  to  God  —  The  purport  of 
oaths  —  To  be  faithfully  observed  in  all  cases  —  The  controul  of 
sovereigns  over  the  oaths  of  subjects  —  Observations  on  our  Saviour's 
prohibition  of  oaths  —  Forms  substituted  for  oaths. 

I.  THE  sanctity    of    an   oath   with    regard   to  promises, 
agreements,  and  contracts,  has   always   been  held  in  the 
greatest  esteem,  in  every  age   and   among   every  people. 
For  as  Sophocles  has  said  in  his  Hippodamia,  (<  The  soul 
is  bound  to  greater   caution   by   the  addition  of  an  oath. 
For  it  guards  us  against  two  things,  most  to  be  avoided, 
the  reproach  of  friends,  and  the    wrath  of  heaven. }>     In 
addition  to  which  the  authority  of  Cicero  may  be  quoted, 
who  says,  our  forefathers   intended   that   an   oath  should 
be  the  best  security  for  sincerity  of   affirmation,  and  the 
observance  of  good  faith.     (<  For,  as  he  observes  in  another 
place,  there  can  be  no  stronger  tie,  to  the   fulfilment  of 
our  word  and   promise,  than  an  oath,  which  is  a  solemn 
appeal  to  the  testimony  of  God.w 

II.  The  next  point,  to   be   considered,  is   the   original 
force  and  extent  of  oaths. 

And  in  the  first  place  the  arguments,  that  have  been 
used  respecting  promises  and  contracts,  apply  to  oaths 
also,  which  ought  never  to  be  taken  but  with  the  most 
deliberate  reflection  and  judgment.  Nor  can  any  one 
lawfully  take  an  oath,  with  a  secret  intention  of  not  being 
bound  by  it.  For  the  obligation  is  an  inseparable  and 
necessary  consequence  of  an  oath,  and  every  act  accom- 
panied with  an  obligation  is  supposed  to  proceed  from  a 
deliberate  purpose  of  mind.  Every  one  is  bound  like- 
wise to  adhere  to  an  oath  in  that  sense,  in  which  it  is 
usually  understood  to  be  taken.  For  an  oath  being  an 
appeal  to  God,  should  declare  the  full  truth  in  the  sense 
in  which  it  is  understood.  And  this  is  the  sense  upon 
which  Cicero  insists  that  all  oaths  should  be  performed 
(160) 


THE   RIGHTS   OF  WAR  AND  PEACE  161 

and  adhered  to  in  that  sense,  in  which  the  party  impos- 
ing them  intended  they  should  be  taken.  For  although 
in  other  kinds  of  promises  a  condition  may  easily  be  im- 
plied, to  release  the  promiser;  yet  that  is  a  latitude  by 
no  means  admissible  in  an  oath.  And  on  this  point  an 
appeal  may  be  made  to  that  passage,  where  the  admirable 
writer  of  the  Epistle  to  the  Hebrews  has  said,  GOD  WILL- 
ING more  abundantly  to  shew  unto  the  heirs  of  the 
promise  the  immutability  of  his  counsel  confirmed  it  by 
an  oath:  that  by  two  immutable  things,  in  which  it  was 
impossible  for  God  to  deceive,  we  might  have  a  strong 
consolation.  In  order  to  understand  these  words,  we 
must  observe  that  the  sacred  writers,  in  speaking  of  God, 
often  attribute  to  him  human  passions,  rather  in  con- 
formity to  our  finite  capacities,  than  to  his  infinite  nature. 
For  God  does  not  actually  change  his  decrees,  though  he 
may  be  said  to  do  so,  and  to  repent,  whenever  he  acts 
otherwise  than  the  words  seemed  to  indicate,  the  occa- 
sion, on  which  they  were  delivered,  having  ceased.  Now 
this  may  easily  be  applied  in  the  case  of  threats,  as  con- 
ferring no  right;  sometimes  too  in  promises,  where  a 
condition  is  implied.  The  Apostle  therefore  names  two 
things  denoting  immutability,  a  promise  which  confers  a 
right,  and  an  oath,  which  admits  of  no  mental  reserva- 
tions. 

From  the  above  arguments  it  is  easy  to  comprehend 
what  is  to  be  thought  of  an  oath  fraudulently  obtained. 
For  if  it  is  certain  that  a  person  took  the  oath  upon  a 
supposition,  which  afterwards  was  proved  to  have  no 
foundation,  and  but  for  the  belief  of  which  he  would 
never  have  taken  it,  he  will  not  be  bound  by  it.  But  if 
it  appears  that  he  would  have  taken  it  without  that  sup- 
position; he  must  abide  by  his  oath,  because  oaths  allow 
of  no  evasion. 

III.  The  meaning  of  an  oath  should  not  be  stretched 
beyond  the  usual  acceptation  of  words.     Therefore  there 
was  no  breach  of  their  oath  in  those,  who,  having  sworn 
that  they  would  not  give  their  daughters  in  marriage  to 
the  Benjamites,  permitted  those  that  had  been  carried  off 
to  live  with   them.     For   there   is  a  difference  between 
giving  a  thing,  and  not  recovering  that  which  is  lost. 

IV.  To  give  validity  to  an  oath,  the  obligation,  which 
it    imposes    ought    to    be    lawful.      Therefore    a    sworn 
promise,  to   commit  an   illegal   act,  to   do   any  thing  in 
violation  of  natural  or  revealed  law,  will  be  of  no  effect. 

ii 


162  HUGO   GROTIUS 

V.  Indeed    if    a    thing    promised    upon    oath    be    not 
actually  illegal,  but  only  an  obstruction  to  some  greater 
moral  duty,  in  that  case  also  the  oath  will  not  be  valid. 
Because   it  is   a   duty  which  we  owe   to   God  not  to  de- 
prive ourselves  of  the  freedom  of  doing  all  the  good  in 
our  power. 

VI.  Oaths  may  differ  in   form,  and  yet   agree  in  sub- 
stance.    For  they  all  ought  to  include  an  appeal  to  God, 
calling  upon  him  to  witness  the  truth,  or  to  punish   the 
falsehood  of  their  assertions,  both  of  which  amount  to  the 
same  thing.     For  an  appeal  to  the  testimony  of  a  superior, 
who  has  a  right  to  punish,  is  the  same  as  requiring  him 
to  avenge   an   act  of   perfidy.     Now   the   omniscience   of 
God   gives    him   power  to   punish,  as  well  as  to  witness 
every  degree  of  falsehood. 

VII.  It  was  a  custom  with   the   ancients  to  swear  by 
persons   or   beings   expressly  distinct   from   the   supreme 
creator,  either  imprecating  the  wrath  of  those  by  whom 
they  swore,  whether  it  were  the  sun,  the  heavens,  or  the 
earth ;  or  swearing  by  their  own  heads,  by  their  children, 
their  country  or  their  prince,  and  calling  for  destruction 
upon  THEM,  if  there  were  any  falsehood  in  their  oaths. 

Nor  was  this  practice  confined  to  Heathen  nations 
only,  but,  as  we  are  informed  by  Philo,  it  prevailed 
among  the  Jews.  For  he  says  that  we  ought  not,  in 
taking  an  oath  upon  every  occasion,  to  have  recourse  to 
the  maker  and  father  of  the  universe,  but  to  swear  by 
our  parents,  by  the  heavens,  the  earth,  the  universe. 
Thus  Joseph  is  said  to  have  sworn  by  the  life  of  Pharaoh, 
according  to  the  received  custom  of  the  Egyptians.  Nor 
does  our  Saviour,  in  the  fifth  chapter  of  St.  Matthew's 
Gospel,  intend,  as  it  is  supposed  by  some,  to  consider 
these  oaths  to  be  less  binding  than  those  taken  expressly 
by  the  name  of  God.  But  as  the  Jews  were  too  much 
inclined  to  make  use  of,  and  yet  disregard  them,  he 
shews  them  that  they  are  real  oaths.  For,  as  Ulpian 
has  well  observed,  he  who  swears  by  his  own  life,  seems 
to  swear  by  God,  bearing  a  respect  and  reference  to  his 
divine  power.  In  the  same  manner  Christ  shews  that 
he,  who  swears  by  the  temple,  swears  by  God  who  pre- 
sides in  the  temple,  and  that  he  who  swears  by  Heaven, 
swears  by  God,  who  sits  upon  the  Heavens.  But  the 
Jewish  teachers  of  that  day  thought  that  men  were  not 
bound  by  oaths  made  in  the  name  of  created  beings, 
unless  some  penalty  were  annexed,  as  if  the  thing,  by 


THE   RIGHTS   OF   WAR  AND   PEACE  163 

which  they  swore,  were  consecrated  to  God.  For  this  is 
the  kind  of  oath  implied  in  the  word  nopfiay,  as  BY  A 
GIFT.  And  it  is  this  error  of  theirs,  which  Christ 
refutes. 

VIII.  The    principal   effect    of    oaths   is    to    cut  short 
disputes.      <(An    oath    for    confirmation,    as  the    inspired 
writer  of  the  Epistle  to  the  Hebrews  has  said,  is  the  end  of 
all  strife."     So  too  we  find  in  Diodorus  Siculus,  that  an 
oath  was  regarded   among  the    Egyptians   as   the   surest 
pledge  of  sincerity  that  men  could  give.     So  that  every 
one,  in  taking  an  oath,  should  express  the  real  purpose 
of  his  mind,  and  render  his  actions  conformable  to  those 
expressions.     There  is  a  beautiful  passage  on  this  subject, 
in  Dionysius  of  Halicarnassus,  who  says,  (<  the  last  pledge 
among  men,  whether  Greeks  or  Barbarians,  and  it  is   a 
pledge,  which  no  time  can  blot  out,  is  that  which  takes 
the  Gods,  as  witnesses  to  oaths  and  covenants.* 

IX.  The  substance  of  an  oath  too  should  be  such,  and 
conceived  in  such  words,  as  to  include  not  only  the  divine, 
but  the  human  obligations,  which  it  implies.    For  it  should 
convey  to  the  person,  who  receives  it,  the  same  security 
for  his  right,  as  he  would  derive  from  an  express  prom- 
ise or  a  contract.     But  if  either  the  words  bear  no  refer- 
ence to  a  person  so  as  to  confer  upon  him  a  right,  or  if 
they  do  refer  to  him   but   in   such  a  manner   that  some 
opposition   may  be  made   to  his   claim,  the   force  of  the 
oath  will,  in  that  case,  be  such  as  to  give  that  person  no 
right  from  it;  yet  he  who  has  taken  it  must  still  submit 
to  the   divine    obligation,  which   the   oath   imposes.     An 
example  of   which   we  have  in  a  person,  from   whom   a 
sworn  promise  has  been  extorted  by  fear.     For  here  the 
oath   conveys  no  right,  but  what  the  receiver  ought   to 
relinquish,  for  it  has   been  obtained  to  the   prejudice   of 
the  giver.     Thus   we   find   the    Hebrew    Kings    were  re- 
proved  by  the  prophets,  and   punished   by   God   for  not 
observing  the   oaths,  which  they  had   taken  to  the  kings 
of   Babylon. 

X.  The    same    rule    applies    not    only    to    transactions 
between   public  enemies,  but  to  those  between  any  indi- 
viduals whatsoever.     For  he,  to  whom  the  oath  is  taken, 
is  not  the   only  person  to   be   considered;    but  a  solemn 
regard  must  be  paid  to  God,  in  whose  name  the  oath  is 
taken,  and  who  possesses  authority  to  enforce  the  obliga- 
tion.    For  which   reason    it  is   impossible    to  admit  the 
position   of  Cicero,  that  it  is  no  breach   of  an   oath  to 


164  HUGO    GROTIUS 

refuse  paying  to  robbers  the  sum  stipulated  for  having 
spared  one's  life;  because  such  men  are  not  to  be  ranked 
in  the  number  of  lawful  enemies,  but  treated  as  the 
common  enemies  of  all  mankind,  so  that  towards  them 
no  faith  ought  to  be  kept,  nor  even  the  sanctity  of  an 
oath  observed. 

XI.  The  power  of  superiors   over  inferiors,    that  is  of 
sovereigns   over   subjects,    with    respect  to   oaths,  is  the 
next  topic  that  comes  under  consideration.     Now  the  act 
of  a  superior  cannot   annul  the  perfect  obligation  of  an 
oath,  which  rests  upon  natural  and  revealed  law.     But  as 
we  are  not,  in  a  state  of  civil   society,    entirely  masters 
of  our  own  actions,  which  in  some  measure  depend  upon 
the  direction  of  the   sovereign   power,    which  has  a  two- 
fold influence  with   respect  to  oaths,  in  the  one  case  ap- 
plying to  the  person  who  takes,  and  in  the  other,  to  the 
person  who  receives  them.     This  authority  may  be  exer- 
cised over  the  person  taking  the  oath,  either  by  declaring, 
before  it  is  taken,  that  it  shall  be  made  void,  or  by  pro- 
hibiting its  fulfilment,  when  taken.     For  the   inferior  or 
subject,    considered  as  such,    could   not  bind    himself  to 
engagements,  beyond  those  allowed  by  the  sovereign  leg- 
islature.    In  the  same  manner,  by  the  Hebrew  Law,  hus- 
bands might  annul  the  oaths  of  wives,  and  fathers  those 
of  children,  who  were  still  dependent. 

XII.  In  this  place  we  may  cursorily  observe,  that  what 
is  said  in  the  precepts  of  Christ,  and  by  St.  James,  against 
swearing  at   all,    applies   not  to   an   oath   of   affirmation, 
many  instances  of  which  are  to  be  found  in  the  writings 
of  St.  Paul,  but  to  promissory  oaths  respecting  uncertain 
and  future   events.     This  is  plain  from  the  opposition  in 
the  words  of  Christ.     "  You  have  heard  it  hath  been  said 
by   them  of  old   time,    thou    shalt   not  forswear  thyself, 
but  shalt  perform   unto  the  Lord  thine  oath.     But  I  say 
to  you,  swear  not  at  all.9     And  the  reason   given  for  it 
by  St.    James,  is  that  "you  fall   not   into  hypocrisy,"  or 
be  found   deceivers;   for  so  the  word   HYPOCRISY   signifies 
in  the  Greek. 

Again  it  is  said  by  St.  Paul,  that  all  the  promises  of 
God  in  Christ  are  YEA  and  AMEN,  that  is  are  certain 
and  undoubted.  Hence  came  the  Hebrew  phrase,  that  a 
just  man's  YEA  is  YEA,  and  his  NO  is  NO.  On  the 
other  hand,  persons,  whose  actions  differ  from  their  affir- 
mations, are  said  to  speak  YEA  and  NO,  that  is  their 
affirmation  is  a  denial,  and  their  denial  an  affirmation. 


THE   RIGHTS  OF  WAR  AND  PEACE  165 

In  this  manner  St.  Paul  vindicates  himself  from  the  charge 
of  lightness  of  speech,  adding  that  his  conversation  had 
not  been  YEA,  and  NO. 

XIII.  Affirmations  are  not  the  only  modes  of  obliga- 
tion. For  in  many  places  signs  have  been  used  as  pledges 
of  faith;  thus  among  the  Persians  giving  the  right  hand 
was  considered  the  firmest  tie.  So  that  where  any  form 
is  substituted  for  an  oath,  the  violation  of  it  will  be  an 
act  of  perjury.  It  has  been  said  of  Kings  and  Princes 
in  particular,  that  their  faith  is  the  same  as  an  oath.  On 
which  account  Cicero,  in  his  speech  for  Dejotarus,  com- 
mends Caesar  no  less  for  the  vigour  of  his  arm  in  battle, 
than  for  the  sure  fulfilment  of  the  pledge  and  promise 
of  his  right  hand. 


CHAPTER  XV.* 

ON  TREATIES  AND  ON  ENGAGEMENTS   MADE  BY  DELEGATES, 
EXCEEDING  THEIR  POWER. 

Public  Conventions  —  Divided  into  treaties,  engagements,  and  other 
compacts  —  Difference  between  treaties  and  the  engagements  made 
by  delegates  exceeding  their  powers  —  Treaties  founded  on  the  law  of 
nature  —  Their  origin — Treaties  founded  on  still  more  extensive 
principles  —  Treaties  with  those,  who  are  strangers  to  the  true  reli- 
gion, prohibited  neither  by  the  Jewish  nor  Christian  law — Cautions  re- 
specting such  treaties — Christians  bound  to  unite  against  the  enemies 
of  the  Christian  religion  —  Among  a  number  of  Allies  in  war,  which 
of  them  have  the  first  pretensions  to  assistance  —  Tacit  renewal  of 
treaties  —  The  effect  of  perfidy  in  one  of  the  contracting  parties  con- 
sidered —  How  far  the  unauthorized  engagements  of  delegates  are 
binding,  when  the  sovereigns  refuse  to  ratify  them — The  Caudian 
Convention  considered  —  Whether  the  knowledge  and  silence  of  the 
Sovereign  makes  those  unauthorized  conventions  binding  —  The  Con- 
vention of  Luctatius  considered. 

I.  ULPIAN  has  divided  conventions  into  two  kinds,  pub- 
lic and  private,  and  he  has  not  explained  a  public  con- 
vention upon  the  usual  principles,  but  has  confined  it  to 
a  treaty  of  peace,  which  he  alleges  as  his  first  example, 
and  he  has  made  use  of  the  engagements  entered  into 
by  the  generals  of  two  contending  powers,  as  an  instance 
of  private  conventions.  By  public  conventions  therefore 
he  means  those,  which  cannot  be  made  but  by  the 
authority  and  in  the  name  of  the  sovereign  power,  thus 
distinguishing  them  not  only  from  the  private  contracts 
of  individuals,  but  ALSO  from  the  PERSONAL  contracts  of 
sovereigns  themselves.  And  indeed  private  injuries  and 
contracts,  no  less  than  public  treaties  frequently  prove 
the  origin  of  wars.  And  as  private  contracts  have  been 
already  so  amply  discussed,  the  higher  order  of  contracts, 
which  come  under  the  denomination  of  treaties,  will  nec- 
essarily form  the  leading  part  in  our  farther  inquiries. 

•The  nature  of  oaths,  contracts  and  promises  having  been  so  fully 
discussed  in  the  preceding  chapters,  the  translation  proceeds  from  the 
thirteenth  to  the  fifteenth  chapter  of  the  original,  the  fourteenth  being 
in  a  great  measure  only  a  repetition  of  our  author's  former  arguments 
upon  the  subject. — TRANSLATOR. 
(166) 


THE   RIGHTS  OF   WAR  AND   PEACE  167 

II.  and  III.  Now  public  conventions  may  be  divided  into 
treaties,  engagements,  and  other  compacts. 

The  ninth  book  of  Livy  may  be  consulted  on  the  dis- 
tinction between  treaties  and  engagements,  where  the 
historian  informs  us,  that  treaties  are  those  contracts, 
which  are  made  by  the  express  authority  of  the  sovereign 
power,  and  in  which  the  people  invoke  the  divine  venge- 
ance on  their  heads,  if  they  violate  their  engagements. 
Among  the  Romans  the  persons  employed  in  declaring 
war  and  making  peace,  were  in  the  conclusion  of  these 
solemn  treaties,  always  accompanied  by  the  principal 
herald,  who  took  the  oath  in  the  name  of  the  whole  people. 
A  sponsio^  or  ENGAGEMENT,  is  what  was  made  by  persons, 
who  had  no  express  commission  for  that  purpose  from  the 
sovereign  power,  and  whose  acts  consequently  required  a 
further  ratification  from  the  sovereign  himself.* 

The  Senate  of  Rome,  we  are  informed  by  Sallust, 
judged  very  properly  in  passing  a  decree,  that  no  treaty 
could  be  made  without  their  consent  and  that  of  the  peo- 
ple. Livy  relates  that  Hieronymus,  king  of  Syracuse, 
having  entered  into  a  convention  with  Hannibal,  sent 
afterwards  to  Carthage  to  have  it  converted  by  the  state 
into  a  league.  For  which  reason  Seneca  the  elder  has 
said,  applying  the  expression  to  persons  invested  with  a 
special  commission  for  that  purpose,  that  a  treaty,  nego- 
tiated by  the  general,  binds  the  whole  of  the  Roman 
people,  who  are  supposed  to  have  made  it. 

*  On  this  subject  the  opinions  of  our  author,  and  those  of  Vattel  will 
reflect  light  upon  each  other.  From  the  latter  of  whom,  the  following 
extracts  will  place  the  matter  in  a  clear  point  of  view.  <(  If  a  public  per- 
son, an  ambassador,  or  a  general  of  an  army,  exceeding  the  bounds  of 
his  commission,  concludes  a  treaty  or  a  convention  without  orders  from 
the  sovereign  or  without  being  authorised  to  do  it  by  virtue  of  his  office, 
the  treaty  is  null,  as  being  made  without  sufficient  powers :  it  cannot 
become  valid  without  the  express  or  tacit  ratification  of  the  sovereign. 
The  express  ratification  is  a  written  deed  by  which  the  sovereign  ap- 
proves the  treaty,  and  engages  to  observe  it.  The  tacit  ratification  is 
implied  by  certain  steps  which  the  sovereign  is  justly  presumed  to  take 
only  in  pursuance  of  the  treaty,  and  which  he  could  not  be  supposed  to 
take  without  considering  it  as  concluded  and  agreed  upon.  Thus,  on  a 
treaty  of  peace  being  signed  by  public  ministers  who  have  even  exceeded 
the  orders  of  their  sovereigns,  if  one  of  the  sovereigns  causes  troops  to 
pass  on  the  footing  of  friends  through  the  territories  of  his  reconciled 
enemy,  he  tacitly  ratifies  the  treaty  of  peace.  But  if,  by  a  reservatory 
clause  of  the  treaty,  the  ratification  of  the  sovereign  be  required  —  as 
such  reservation  is  usually  understood  to  imply  an  express  ratification, 
it  is  absolutely  requisite  that  the  treaty  be  thus  expressly  ratified  before 
it  can  acquire  its  fulJ  force.  By  the  Latin  term  sponsio,  we  express  an 


168  HUGO   GROTIUS 

But  in  monarchies,  the  power  of  making  treaties  be- 
longs to  the  king  alone,  a  maxim  which  the  language  of 
poetry,  no  less  than  the  records  of  history,  shews  to  have 
been  held  in  all  ages.  Euripides,  whose  sentiments  are 
always  conformable  to  nature,  and  popular  opinion,  in 
his  Tragedy  of  the  Suppliants,  says,  <(  It  rests  with  Adras- 
tus  to  take  the  oath,  to  whom,  as  sovereign,  the  sole 
right  of  binding  the  country  by  treaties  belongs.* 

No  subordinate  magistrates  have  such  a  power  of  bind- 
ing the  people;  nor  will  the  acts  of  a  smaller  portion 
bind  the  greater,  an  argument  used  in  favour  of  the 
Romans  against  the  Gauls.  For  there  was  a  majority  of 
the  people  with  Camillus,  the  dictator. 

But  it  remains  to  be  considered  how  far  the  acts  of 
those,  who  have  engaged  for  the  people,  without  any 
public  authority,  are  binding.  Perhaps  it  may  be  said 
that  the  contracting  parties  have  discharged  their  responsi- 
bility when  they  have  done  all  in  their  power  towards 
the  fulfilment  of  their  obligation.  That  might  be  the 
case  in  promises,  but  the  obligation  in  public  contracts 
is  of  a  stricter  kind.  For  the  party  contracting  requires 
something  in  return  for  the  engagements  he  makes. 
Hence  the  civil  law,  which  rejects  all  promises  made  by 
one  person  for  the  performance  of  some  act  by  another, 
renders  him  who  engages  for  the  ratification  of  a  thing 
liable  to  pay  damages  and  interest. 

IV.  The  most  accurate  distinction  in  treaties,  is  that 
which  makes  the  foundation  of  some  rest  purely  upon  the 
law  of  nature,  and  others  upon  the  obligations,  which 
men  have  either  derived  from  the  law  of  nature,  or 
added  to  it.  Treaties  of  the  former  kind  are,  in  general, 

agreement  relating  to  affairs  of  state,  made  by  a  public  person,  who  ex- 
ceeds the  bounds  of  his  commission,  and  acts  without  the  orders  or  com- 
mand of  the  sovereign.  The  person  who  treats  for  the  state  in  this 
manner  without  being  commissioned  for  the  purpose,  promises  of  course 
to  use  his  endeavours  for  prevailing  on  the  state  or  sovereign  to  ratify 
the  articles  he  has  agreed  to :  otherwise  his  engagements  would  be 
nugatory  and  illusive.  The  foundation  of  this  agreement  can  be  no 
other,  on  either  side,  than  the  hope  of  such  ratification.* — Vattel,  b.  ii. 
ch.  xiv.  sect.  208,  209,  p.  219.  (<The  general  of  an  army,  he  proceeds, 
has  indeed  by  virtue  of  his  commission,  a  power  to  enter,  as  circum- 
stances may  require,  into  a  private  convention, — a  compact  relative 
to  himself,  to  his  troops,  or  to  the  occurrences  of  war  :  but  he  has  no 
power  to  conclude  a  treaty  of  peace.  He  may  bind  himself,  and  the 
troops  under  his  command,  on  all  occasions  where  his  functions  require 
that  he  should  have  the  power  of  treating;  but  he  cannot  bind  the  state 
beyond  the  extent  of  his  commission.8 — Ibid.  sect.  210.  p.  220. 


THE   RIGHTS   OF   WAR  AND   PEACE  169 

made,  not  only  between  enemies,  as  a  termination  of 
war;  but  in  ancient  times  were  frequently  made,  and,  in 
some  degree,  thought  necessary  among  men  in  the  for- 
mation of  every  contract.  This  arose  from  that  princi- 
ple in  the  law  of  nature,  which  established  a  degree  of 
kindred  among  mankind.  Therefore  it  was  unlawful  for 
one  man  to  be  injured  by  another.  And  this  natural 
justice  universally  prevailed  before  the  deluge.  But  after 
that  event,  in  process  of  time,  as  evil  dispositions  and 
habits  gained  ground,  it  was  by  degrees  obliterated.  So 
that  one  people's  robbing  and  plundering  another,  even 
when  no  war  had  been  commenced  or  declared,  was 
deemed  lawful.  Epiphanius  calls  this  the  Scythian  fash- 
ion. Nothing  is  more  frequent  in  the  writings  of  Homer 
than  for  men  to  be  asked,  if  they  are  robbers  ?  A  ques- 
tion, as  Thucydides  informs  us,  by  no  means  intending 
to  convey  reproach,  but  purely  for  information.  In  an 
ancient  law  of  Solon's  mention  is  made  of  companies 
formed  for  robbery:  and,  we  find  from  Justin,  that,  till 
the  times  of  Tarquin,  piracy  was  attended  with  a  degree 
of  glory. 

In  the  law  of  the  Romans  it  was  a  maxim,  that  nations, 
which  had  not  entered  into  terms  of  amity,  or  into 
treaties  with  them  were  not  to  be  considered  as  enemies. 
But  if  any  thing  belonging  to  the  Romans  fell  into  their 
hands,  it  became  theirs;  or  any  citizen  of  Rome,  taken 
by  them,  became  a  slave;  and  the  Romans  would  treat 
any  person  belonging  to  that  nation,  in  the  same  manner. 
In  this  case  the  right  of  postliminium*  is  observed.  So 
at  a  remote  period,  before  the  times  of  the  Peloponne- 
sian  war,  the  Corcyraeans  were  not  considered  as  enemies 
by  the  Athenians,  though  there  was  no  treaty  of  peace 
subsisting  between  them,  as  appears  from  the  speech  of 
the  Corinthians  given  by  Thucydides.  Aristotle  com- 
mends the  practice  of  plundering  barbarians,  and  in 
ancient  Latium  an  enemy  signified  nothing  but  a 
foreigner. 

In  the  class  of  treaties  referred  to  in  this  section  may 
be  ranked  those  made  between  different  states  for  the 
mutual  preservation  of  the  rights  of  hospitality  and 
commerce,  as  far  as  they  come  under  the  law  of  nature. 

*  <(The  right  of  postliminium  is  that,  in  virtue  of  which,  persons  and 
things  taken  by  the  enemy  are  restored  to  their  former  state,  on  coming 
again  into  the  power  of  the  nation  to  which  they  belonged. »  Vattel,  b. 
iii.  ch.  xiv.  sect.  204. 


1 70  HUGO   GROTIUS 

Arco  makes  use  of  this  distinction,  in  his  speech  to  the 
Achaeans,  as  reported  by  Livy,  where  he  says  he  does 
not  require  an  offensive  and  defensive  alliance,  but  only 
such  a  treaty  as  may  secure  their  rights  from  infringe- 
ment by  each  other,  or  prevent  them  from  harbouring 
the  fugitive  slaves  of  the  Macedonians.  Conventions  of 
this  kind  were  called  by  the  Greeks,  strictly  speaking, 
PEACE  in  opposition  to  TREATIES. 

V.  Treaties  founded  upon  obligations  added  to  those 
of  the  law  of  nature  are  ;either  equal,  or  unequal. 
Equal  treaties  are  those,  by  which  equal  advantages  are 
secured  on  both  sides.  The  Greeks  call  them  ALLIANCES, 
and  sometimes  alliances  upon  an  equal  scale.  But 
treaties  of  the  latter  kind  are  more  properly  leagues 
than  treaties,  and  where  one  of  the  parties  is  inferior  in 
dignity,  they  are  called  INJUNCTIONS,  or  INJUNCTIONS 
ANNEXED  TO  COVENANTS.  Demosthenes  in  his  speech  on 
the  liberty  of  the  Rhodians  says,  all  nations  ought  to 
guard  against  forming  such  leagues,  as  approaching  too 
near  to  servitude. 

Treaties  of  both  kinds,  whether  of  peace  or  alliance 
are  made  from  motives  of  some  advantage  to  the  parties. 
By  equal  treaties  of  peace,  the  restoration  of  prisoners, 
the  restoration  or  cession  of  conquered  places,  and  other 
matters  providing  for  its  due  maintenance,  are  settled, 
a  subject  that  will  be  more  fully  treated  of  hereafter,  in 
stating  the  effects  and  consequences  of  war.  Treaties  of 
alliance  upon  equal  conditions  relate  either  to  commerce, 
or  to  contributions  for  the  joint  prosecution  of  a  war,  or 
to  other  objects  of  equal  importance.  Equal  treaties  of 
commerce  may  vary  in  their  terms.  For  instance  it  may 
be  settled  that  no  duties  shall  be  imposed  upon  the  goods 
of  the  subjects,  belonging  to  each  of  the  contracting 
powers:  or  that  the  duties  upon  their  respective  com- 
modities shall  be  lower  than  the  duties  upon  those  of  any 
other  nation.  The  first  of  these  examples  may  be  found 
in  an  ancient  treaty  between  the  Romans  and  Carthagin- 
ians, in  which  there  is  a  clause,  making  an  exception  of 
what  is  given  to  the  notary  and  public  crier.  Or  it  may 
be  settled  that  no  higher  duties  than  those  existing  at 
the  time  the  treaty  is  made  shall  be  imposed,  or  that 
they  shall  not  be  augmented  beyond  a  certain  rate. 

So  in  alliances  of  war  the  contracting  parties  are  re- 
quired to  furnish  equal  numbers  of  troops  or  ships,  a  kind 
of  alliance  which,  as  Thucydides  explains  it,  calls  upon 


THE  RIGHTS  OF  WAR  AND  PEACE  171 

the  united  powers  to  hold  the  same  states  for  common 
enemies  or  friends:  we  find,  in  many  parts  of  Livy, 
alliances  of  this  description  among  states,  for  the  mutual 
defence  of  their  territories  or  for  the  prosecution  of  some 
particular  war,  or  against  some  particular  enemy,  or 
against  all  states  excepting  their  respective  allies.  Po- 
lybius  has  given  a  treaty  of  this  kind,  made  between  the 
Carthaginians  and  Macedonians.  In  the  same  manner 
the  Rhodians  bound  themselves  by  treaty  to  assist  Atigo- 
nus  Demetrius  against  all  enemies  except  Ptolemy. 
There  are  other  objects  too  for  which  equal  treaties  are 
made.  Thus  one  power  may  bind  another  to  build  no 
forts  in  their  neighbourhood  which  might  prove  an  annoy- 
ance, to  give  no  encouragement  to  rebellious  subjects,  to 
allow  the  troops  of  an  enemy  no  passage  through  their 
country. 

VI.  From  equal  treaties,  the  nature  of  unequal  treaties 
may  easily  be  understood.    And  where  two  powers  contract, 
this  inequality  may  be  on  the  side  either  of  the  superior,  or 
of  the  inferior  power.     A  superior  power  may  be  said  to 
make  an  unequal  treaty,  when  it  promises  assistance  without 
stipulating  for  any   return,    or   gives    greater  advantages 
than  it  engages  to  receive.     And  on  the   part  of  the  in- 
ferior power  this  inequality  subsists   when,    as   Isocrates 
says    in    his   PANEGYRIC,  her    privileges    are   unduly    de- 
pressed ;  so  that  engagements  of  this  kind  may  be  called 
injunctions  or  commands  rather  than  treaties.     And  these 
may,  or  may  not,  be  attended  with  a  diminution  of  their 
sovereign  power. 

Such  a  diminution  of  sovereign  power  followed  the 
second  treaty  between  the  Carthaginians  and  Romans, 
by  which  the  former  were  bound  to  make  no  war  but 
with  the  consent  of  the  Roman  people;  so  that  from 
that  time,  Appian  says,  the  Carthaginians  were  com- 
pelled by  treaty  to  comply  with  the  humour  of  the  Ro- 
mans. To  this  kind  may  be  added  a  conditional  surrender, 
except  that  it  leads  not  to  a  DIMINUTION,  but  to  an 
ENTIRE  TRANSFER  of  the  sovereign  dignity  and  power. 

VII.  The  burdens  attached  to  unequal  treaties,    where 
no  diminution  of  sovereignty  takes  place,  may  be  either 
transitory  or  permanent. 

TRANSITORY  burdens  are  those,  by  which  the  payment 
of  certain  sums  of  money  is  imposed,  the  demolition  of 
certain  works  and  fortifications,  the  cession  of  certain 
countries  and  the  delivery  of  ships  or  hostages  are 


172  HUGO   GROTIUS 

required.  But  PERMANENT  conditions  are  those,  which  re- 
quire the  tribute  of  homage  and  submission  from  one 
power  to  another. 

Nearly  approaching  to  such  treaties  are  those,  by 
which  one  power  is  debarred  from  having  any  friends 
or  enemies,  but  at  the  pleasure  of  another,  or  from  al- 
lowing a  passage  and  supplies  to  the  troops  of  any  state, 
with  whom  that  power  may  be  at  war.  Besides  these 
there  may  be  conditions  of  an  inferior  and  less  important 
kind ;  such  as  those,  which  prohibit  the  building  of  forts 
in  certain  places;  maintaining  armies,  or  having  ships 
beyond  a  certain  number;  navigating  certain  seas,  or 
raising  troops  in  certain  countries;  attacking  allies  or 
supplying  enemies.  Some  conditions  indeed  go  so  far 
as  to  prohibit  a  state  from  admitting  refugees,  and  to 
demand  annulling  all  former  engagements  with  every 
other  power.  Numerous  examples  of  such  treaties  are  to 
be  found  in  historians  both  ancient  and  modern. 

Unequal  treaties  may  be  made  not  only  between  the 
conquerors  and  the  conquered  but  also  between  mighty 
and  impotent  states,  between  whom  no  hostilities  have 
ever  existed. 

VIII.  In   considering   treaties,   it   is   frequently   asked, 
whether  it  be  lawful  to  make  them  with  nations,  who  are 
strangers   to  the   Christian   religion;    a  question,   which, 
according  to  the  law  of  nature,  admits   not  of  a   doubt. 
For  the  rights,  which  it  establishes,  are   common   to   all 
men  without  distinction  of  religion. 

The  gospel  has  made  no  change  in  this  respect,  but 
rather  favours  treaties,  by  which  assistance  in  a  just 
cause  may  be  afforded  even  to  those,  who  are  strangers 
to  religion.  For  to  embrace  opportunities  of  doing  good 
to  all  men  is  not  only  permitted  as  laudable,  but  enjoined 
as  a  precept.  For  in  imitation  of  God,  who  makes  his  sun 
to  rise  upon  the  righteous  and  the  wicked,  and  refreshes 
them  both  with  his  gracious  rain,  we  are  commanded  to 
exclude  no  race  of  men  from  their  due  share  of  our  serv- 
ices. Yet,  in  equal  cases,  it  admits  of  no  doubt,  that 
those  within  the  pale  of  our  own  religious  communion 
have  a  preferable  claim  to  our  support. 

IX.  In   addition   to   the   foregoing   arguments  we   may 
observe  that  as  all  Christians  are  considered  as  members 
of  one  body,  which  are  required  to  feel  for  the  pains  and 
sufferings  of  each  other,  this  precept  applies  not  only  to 
individuals,    but    to    nations    and   kings    in    their    public 


THE   RIGHTS  OF  WAR  AND   PEACE  173 

capacity.  For  the  rule  of  duty  is  not  to  be  measured  by 
the  inclination  of  individuals,  but  by  the  injunctions  of 
Christ.  And  in  some  cases  the  ravages  of  an  impious 
enemy  can  only  be  opposed  by  a  firm  alliance  among 
Christian  kings,  and  governments.  And  it  is  a  duty 
from  which  nothing,  but  inevitable  necessity,  and  their 
immediate  attention  being  engrossed  by  the  prosecution 
of  other  wars,  can  excuse  them. 

X.  Another  question  frequently  arises,  which  is,  when 
two  states  are  engaged  in  war  with  each  other,  to  which 
of  them  a  power,  equally  allied  to  both,  ought  in  prefer- 
ence to  give  assistance.  Here  too  we  must  observe  there 
can  be  no  obligation  to  support  unjust  wars.  On  which 
account  that  confederate  power,  which  has  justice  on  its 
side,  will  have  a  claim  to  preference,  if  engaged  in  war 
with  another  not  comprehended  in  the  number  of  con- 
federates, or  even  if  engaged  with  one  of  the  confeder- 
ates themselves. 

But  if  two  powers  engage  in  a  war,  equally  unjust  on 
both  sides,  a  third  power,  united  in  confederacy  with 
both,  will  prudently  abstain  from  interference.  Again, 
if  two  powers  allied  to  us  are  engaged  in  a  just  war 
against  others,  with  whom  we  have  no  connection ;  in  the 
supplies  of  men  or  money  that  we  furnish  to  either  we 
ought  to  follow  the  rule,  observed  in  the  case  of  per- 
sonal creditors.* 

But  if  personal  assistance,  which  cannot  be  divided,  is 
required  of  the  contracting  party,  in  that  case  the  pref- 
erence must  be  given  to  the  engagements  of  the  longest 
standing.  However  the  case  of  a  subsequent  treaty, 
which  makes  the  engagements  of  a  more  binding 
and  extensive  nature,  will  form  an  exception  to  this 
rule. 

XL  The  tacit  renewal  of  a  treaty  ought  not  to  be  pre- 
sumed upon  at  the  expiration  of  the  period,  limited  for 
its  continuance,  unless  certain  acts  be  performed,  which 
can  expressly  be  construed  as  a  renewal  of  it,  and  can 
be  taken  in  no  other  sense. 

*«  Personal  creditors  are  in  the  Roman  law  called  Chirographarii, 
because  they  commonly  have  some  bond  or  note  of  hand  for  the  debt. 
And  where  there  are  several  such  creditors,  if  the  debtor's  estate  is 
not  sufficient  to  satisfy  them  all,  each  has  his  share  assigned  in  pro- 
portion to  the  largeness  of  the  debt,  without  any  regard  to  the  time, 
when  it  was  contracted.  But  in  mortgages  it  was  different,  the  debt 
of  longest  standing  was  to  be  first  satisfied •  9  —  Barbeyrac. 


174  HUGO   GHOTIUS 

XII.  If  one  of  the  parties  violates  a  treaty,  such  a  vio- 
lation releases  the  other  from  its  engagements.     For  every 
clause  has  the  binding  force  of  a  condition.      And  as  an 
example    of   this,    a    passage    from    Thucydides   may   be 
quoted,  where  that  historian  says  that  <(  for  one  power  to 
accede  to  a  new  confederacy,   and  to  desert  an  ally  who 
has  neglected  to  fulfil  his  engagements,  is  no  breach  of 
a  treaty;  but  not  to   assist   another  power  in  conformity 
to  sworn  engagements   amounts    to  a   violation  thereof.* 
And   this   is    generally   true,  except    where   it  has  been 
agreed  to  the   contrary,  that   a   treaty   shall   not  be  null 
and  relinquished  for  trifling  disgusts  and  miscarriages. 

XIII.  Conventions  are  as  various  and  numerous  asv trea- 
ties, and  the   distinction    made    between    them   is  owing 
more  to  the  difference  of  power  in   those  by  whom  they 
are  made,  than  to   any  real   difference  in  their  own  nat- 
ure.    But  there  are  two  particular  points  of  inquiry  ma- 
terially connected  with  all  conventions,  the  first  of  which 
relates  to  the  extent  of  the  negotiator's  obligation,  when 
the  sovereign  or  the  state  refuses  to  ratify  a  convention, 
whether  he  is  bound  to  make  an  indemnity  to  the  other 
party  for   the   disappointment,  to   restore    things   to   the 
situation  they  were   in   before   he  treated,  or   to   deliver 
up  his  own  person.    The  first  opinion  seems  conformable 
to  the  Roman   civil  law,  the  second    to  equity   as  it  was 
urged  by  the   tribunes  of  the   people,  L.   Livius,  and  J. 
Melius,  in  the  dispute  about  the  peace  of  Caudium ;  *  but 
the   third   is   that  most   generally  adopted,  as    was  done 
respecting  the  two  famous   conventions   of   Caudium  and 
Numantia.     But  there   is   one   caution   particularly  to  be 
observed,    and    that  is,    that   the    sovereign    is    no   way 
bound  by   such    unauthorised    conventions,    until  he  has 
ratified  them.     In  the  convention  alluded  to,  if  the  Sam- 
nites    had    intended    to    bind    the    Roman    people,    they 
should   have   retained   the    army    at    Caudium,  and   sent 
ambassadors  to  the  senate  and  people  at  Rome,  to  discuss 
the    treaty,  and   learn   upon   what    terms   they   chose   to 
redeem  their  army. 

•When  the  Roman  army  had  passed  under  the  yoke  at  Caudium, 
upon  'their  return,  when  the  matter  was  referred  to  the  senate,  it 
was  said  that  as  the  convention  was  made  without  the  consent  of  the 
senate  or  people,  the  Roman  people  were  not  bound  by  it,  and  a  pro- 
posal was  made  that  those  who  had  signed  the  treaty  should  again  be 
given  up  to  the  enemy,  thus  the  people  would  be  released  from  the 
engagement  This  proposal  was  agreed  to,  and  a  decree  to  that  purpose 
passed. 


THE   RIGHTS   OF   WAR  AND   PEACE  175 

XIV.  Another  question  is,  whether  the  knowledge  and 
silence  of  the  sovereign  bind  him  to  the  observance  of  a 
convention.  But  here  it  is  necessary  to  make  a  distinc- 
tion between  an  absolute  convention,  and  one  made  upon 
condition  of  its  being  ratified  by  the  sovereign.  For  as 
all  conditions  ought  to  be  literally  fulfilled,  such  a  con- 
dition, on  failure  of  fulfilment,  becomes  void. 

This  principle  was  very  properly  observed  in  the  con- 
vention made  between  Luctatius  and  the  Carthaginians ;  to 
which  the  people  refused  to  accede,  as  it  had  been  made 
without  their  consent.  *  A  new  treaty  therefore  was  made 
by  public  authority. 

The  next  thing  to  be  considered  is,  whether  there  may 
not  be  some  act  of  consent  besides  silence.  For  without 
some  visible  act,  silence  is  not  of  itself  sufficient  to  war- 
rant a  probable  conjecture  of  intention.  But  if  certain 
acts  are  done  which  can  be  accounted  for  upon  no  other 
grounds  than  those  of  consent,  they  are  supposed  to 
ratify  a  treaty.  Thus  if  the  convention  of  Luctatius  had 
contained  many  clauses,  some  of  them  relinquishing  cer- 
tain rights,  and  those  clauses  had  been  always  duly  ob- 
served by  the  Romans,  such  observance  would  be  justly 
taken  for  a  ratification  of  the  treaty. 

•Luctatius  had  inserted  this  clause  that  the  agreement  should  be 
good  and  valid,  only  in  case  it  was  approved  by  the  Roman  people. — 
Liv.  lib.  xxi.  c.  xix.  See  likewise  Polybius,  lib.  iii  c.  xxi. 


CHAPTER  XVI. 
THE   INTERPRETATION   OF   TREATIES. 

The  external  obligation  of  promises — Words  where  other  conjectures 
are  wanting  to  be  taken  in  their  popular  meaning  —  Terms  of  art  to 
be  interpreted  according  to  the  acceptation  of  the  learned  in  each 
art,  trade,  and  science  —  Conjectures  requisite  to  explain  ambiguous 
or  seemingly  contradictory  terms — Interpretation  of  treaties  from 
the  subject-matter — From  consequences,  from  circumstances  and 
connection  —  Conjectures  taken  from  motives  —  The  more  strict  or 
more  extensive  interpretation  —  Treaties  favourable,  odious,  mixed 
or  indfferent  —  The  good  faith  of  kings  and  nations  in  treaties  of 
equal  validity  with  law — Rules  of  interpretation  formed  from  the 
above  named  distinctions — Whether  the  word  allies,  in  a  treaty,  is 
limited  to  those,  who  were  such  at  the  time  of  making  it,  or  applies 
to  all  who  are,  or  hereafter  may  become  such  —  Interpretation  of 
the  prohibition  of  one  party's  making  war  without  the  consent  or 
injunction  of  the  other — Of  the  freedom  granted  to  Carthage  —  Dis- 
tinction between  personal  and  real  treaties  —  A  treaty  made  with  a 
king  continues  even  during  his  expulsion  by  an  usurper,  such  a 
treaty  extends  not  to  an  invader — What  kind  of  promises  ought  to 
have  the  preference — The  extent  of  obvious  conjectures  —  The  per- 
formance of  a  commission  by  doing  something  equivalent  —  Inter- 
pretation restricted  more  closely  than  the  bare  signification  of  the 
words  implies  —  From  an  original  defect  of  intention — From  failure 
of  the  sole  motive  —  From  a  defect  in  the  subject  —  Observations  on 
the  last  named  conjectures  —  Emergencies  repugnant  to  the  original 
intention,  by  rendering  it  unlawful  or  burdensome  —  Conjectures 
taken  from  a  comparison  of  one  part  of  the  writings  with  another  — 
Rules  to  be  observed  —  In  dubious  cases,  writings  not  absolutely 
requisite  to  the  validity  of  a  contract  —  Contracts  of  Sovereigns 
not  to  be  interpreted  by  the  Roman  law  — Whether  the  words  of  the 
person  accepting  or  offering  the  engagement  ought  to  be  most 
regarded  —  This  explained  by  a  distinction. 

I.  IF  WE  consider  the  promiser  alone,  he  is  naturally 
bound  to  fulfil  his  engagements.  Good  faith,  observes 
Cicero,  requires  that  a  man  should  consider  as  well  what 
he  intends,  as  what  he  says.  But  as  acts  of  the  mind 
are  not,  of  themselves  visible,  it  is  necessary  to  fix  upon 
some  determinate  mark,  to  prevent  men  from  breaking 
their  engagements,  by  allowing  them  to  affix  their  own 
interpretation  to  their  words.  It  is  a  right,  which  natural 
reason  dictates,  that  every  one  who  receives  a  prom- 
ise, should  have  power  to  compel  the  promiser  to  do 
what  a  fair  interpretation  of  his  words  suggests.  For 
(176) 


THE   RIGHTS   OF   WAR  AND   PEACE  177 

otherwise  it  would  be  impossible  for  moral  obligations 
to  be  brought  to  any  certain  conclusion.  Perhaps  it  was 
in  this  sense  that  Isocrates,  treating  of  agreements,  in 
his  prescription  against  Callimachus,  maintains  that  the 
laws  enacted  on  this  subject  are  the  common  laws  of  all 
mankind,  not  only  Greeks,  but  barbarians  also.  It  is 
for  this  very  reason,  that  specific  forms  have  been  assigned 
for  treaties,  which  are  to  be  drawn  up  in  terms  of  un- 
equivocal and  certain  meaning.  The  proper  rule  of 
interpretation  is  to  gather  the  intention  of  the  parties 
pledged,  from  the  most  probable  signs.  And  these  are  of 
two  kinds,  namely,  words  and  conjectures,  which  may 
be  considered  either  separately,  or  together. 

II.  Where  we  have   no   other   conjecture   to  guide  us, 
words  are  not    to   be   strictly  taken  in   their  original  or 
grammatical  sense,    but  in  their  common  acceptation,  for 
it  is  the  arbitrary  will  of  custom,  which  directs  the  laws 
and    rules    of  speech.*       It  was   a  foolish     act    of    per- 
fidy therefore  in  the  Locrians,  when  they  promised  they 
would  adhere  to  their  engagements  as  long  as  they  stood 
upon  that    soil,  and   bore   those   heads  upon  their  shoul- 
ders, in  order   to   evade   their   promise   to  cast  away  the 
mould,  which  they  had  previously  put  within  their  shoes, 
and  the  heads  of  garlick,  which  they  had  laid  upon  their 
shoulders.     Acts   of  treachery  like   these,  Cicero,  in  the 
third  book  of  his  Offices,  has   properly  observed,  instead 
of   mitigating,    tend   to   aggravate  the  guilt  of  perjury. 

III.  In  terms  of  art  which   are   above   the  comprehen- 
sion of  the  general  bulk  of  mankind,  recourse,  for  expla- 
nation, must  be  had  to  those,  who  are  most  experienced 
in  that  art;  thus  from  consulting   legal    writers,  we  may 
conceive   the   nature   of  particular   crimes,    or  from    the 
pages  of  the  same  authors,  derive   our    notions  of  sover- 
eign power: 

* (<  In  all  human  affairs,  where  absolute  certainty  is  not  at  hand  to 
point  out  the  way,  we  must  take  probability  for  our  guide.  In  most 
cases  it  is  extremely  probable  that  the  parties  have  expressed  them- 
selves conformably  to  the  established  usage :  and  such  probability  ever 
affords  a  strong  presumption,  which  cannot  be  overruled  but  by  a 
still  stronger  presumption  to  the  contrary.  Camden,  in  his  history  of 
Queen  Elizabeth,  gives  us  a  treaty,  in  which  it  is  expressly  said  that 
the  treaty  shall  be  precisely  understood  according  to  the  force  and  ap- 
propriate signification  of  the  terms. »  —  Vattel,  b.  ii.  ch.  xvii.  sect  271.  On 
the  same  subject,  Judge  Blackstone  says,  that  <(  words  are  generally  to 
be  understood  in  their  usual  and  most  known  signification ;  not  so  much 
regarding  the  propriety  of  grammar,  as  their  general  and  popular  use.® — 
Introduct.  to  Com.  ch.  ii.  p.  59. 
12 


178  HUGO   GROTIUS 

It  is  a  just  remark  of  Cicero's,  that  the  language  of 
logic  is  not  that  of  daily  and  familiar  intercourse:  the 
writers  of  that  class  have  phrases  peculiar  to  themselves : 
which  indeed  is  the  case  with  arts  of  every  description. 
So  in  treaties,  where  military  arrangements  occur,  an 
army  is  defined  to  be  a  number  of  soldiers  capable  of 
OPENLY  invading  a  foreign,  or  an  enemy's  country.  For 
historians  everywhere  make  a  distinction  between  the 
private  incursions  of  robbers,  and  what  is  done  by  a  law- 
ful and  regular  army.  What  constitutes  an  army  must 
be  therefore  judged  of  by  the  enemy's  force.  Cicero 
defines  an  army  to  consist  of  six  legions  and  auxiliaries. 
Polybius  says,  that  a  Roman  army  in  general  amounted 
to  sixteen  thousand  Romans,  and  twenty  thousand  aux- 
iliaries. But  a  military  force  might  be  composed  of  a  less 
number  of  troops  than  this.  In  the  same  manner  the 
number  of  ships  sufficient  for  any  purpose  will  amount 
to  a  fleet,  and  a  place  able  to  hold  out  against  an  enemy 
may  be  called  a  fort. 

IV.  It  is  necessary  to  make  use  of  conjecture,  where 
words  or  sentences  admit  of  many  meanings :  A  mode  of 
expression  when  included  in  one  word,  is  called  by 
Logicians,  a  synonymous  term,  and,  when  extending  to 
two  or  more  words,  a  doubtful  phrase.  In  the  same 
manner  it  is  necessary  to  have  recourse  to  conjecture 
whenever  a  seeming  contradiction  occurs  in  the  expres- 
sions of  a  treaty.  For  in  that  case  we  must  try  to 
discover  such  conjectures,  as  will  reconcile,  if  possible, 
one  part  with  another.  For  if  there  be  an  evident  con- 
tradiction, the  contracting  parties  by  their  latter  deter- 
minations, must  have  intended  to  abrogate  their  former; 
as  no  one  can  design  to  make  contradictory  resolutions 
at  the  same  time.  Indeed  all  acts  depending  upon  the 
human  will,  as  in  the  case  of  laws  and  testaments,  which 
depend  upon  the  will  of  one  party,  and  in  contracts  and 
treaties,  which  depend  upon  that  of  two  or  more,  all 
these  acts  are  liable  to  changes,  with  a  subsequent  change 
of  will  in  the  parties  concerned.  In  all  such  cases  any 
obscurity  in  the  language  obliges  us  to  have  recourse  to 
conjectures,  which  are  sometimes  so  obvious,  as  to  point 
out  a  meaning  directly  contrary  to  that  of  the  words  in 
their  usual  acceptation.  Now  the  principal  sources  of 
conjecture  are  to  be  found  in  the  subject-matter, 
the  consequences,  and  the  circumstances  and  connec- 
tion. 


THE   RIGHTS   OF  WAR   AND   PEACE  179 

V.  From  the  subject  or  matter,  as  for  instance,  in  the 
word  day.     Thus  if  a  truce  be  made  for  thirty  days,  here 
civil  and  not  natural  days  are  meant.* 

So  the  word  donation  is  sometimes  used  to  signify  a 
transfer,  according  to  the  nature  of  the  business.  In  the 
same  manner  too  the  word  arms,  which  in  general  sig- 
nifies military  instruments,  is  sometimes  applied  to  troops, 
and  may  be  taken  in  either  sense,  according  to  the  par- 
ticular occasion.  Every  interpretation  must  be  given 
according  to  the  intention  understood.  Thus  the  promise 
of  a  free  passage  given  upon  the  evacuation  of  a  town, 
implies  also  that  the  troops  shall  pass  without  molesta- 
tion. If  a  number  of  ships  are  to  be  given  up,  perfect 
and  not  mutilated  ships  are  meant.  And  in  all  similar 
cases  a  similar  judgment  must  be  formed  according  to 
the  natural  tenor  of  the  words. 

VI.  Another  source  of   interpretation   is  derived   from 
the  consequences,  especially  where  a  clause  taken   in  its 
literal    meaning    would   lead  to  consequences    foreign  or 
even    repugnant    to  the    intention  of   a  treaty.     For    in 
an  ambiguous  meaning  such  an  acceptation  must  be  taken 
as    will    avoid   leading   to  an  absurdity  or  contradiction. 
The   cavil   of    Brasidas    therefore  is   highly    abominable, 
who,    promising   that    he  would    evacuate    the    Boeotian 
territory,  said  he  did  not  consider  that  as  Boeotian  terri- 
tory, which  he  occupied  with  his  army;  as  if  the  ancient 
bounds  were  not  intended,  but   only   what   remained  un- 
conquered,  an  evasion,  which  entirely  annulled  the  treaty. 

VII.  From  the  circumstances  or  context  another  source 
of  interpretation  is  derived.     No  inconsiderable  light  may 
be  thrown  upon  the  meaning  of  an   expression  from  the 
circumstance  of  its   being   used    by  the   same    person  to 
express  the  same   intentions  on  other  similar   occasions, 
and  from   its    relation    to    what   goes   before,    and   what 
follows  the  place,  where  it  stands.     For  in  all   doubtful 
cases,    we   have    reason   to  suppose   that   the  contracting 
parties  mean  to  be  consistent  with  their  former  opinions 
and  intentions.     Thus  in    Homer,  in    the   agreement  be- 
tween Paris  and    Menelaus,  that   Helen  should   be  given 

*The  word  DAY  is  understood  of  the  NATURAL  DAY,  or  of  the  time 
during  which  the  sun  affords  us  his  light,  and  of  the  CIVIL  DAY,  or 
the  space  of  twenty-four  hours.  When  it  is  used  in  a  convention  to 
point  out  a  space  of  time,  the  subject  itself  manifestly  shews  that  the 
parties  mean  the  civil  day,  or  the  term  of  twenty-four  hours.* — Vattel, 
b.  ii.  ch.  xvii.  sect.  280. 


i8o  HUGO   GROTIUS 

up  to  the  conqueror,  when  compared  with  what  follows, 
it  is  evident  that  by  the  conqueror  is  meant  the  combat- 
ant, who  killed  the  other.  This  rule  of  interpretation, 
Plutarch  illustrates  by  the  conduct  of  judges,  <(  who  pass- 
ing by  what  is  obscure  rest  their  decisions  upon  clear 
and  unambiguous  points.* 

VIII.  As  to  the   motives,  which    are    sometimes   taken 
for    a    rule   of   interpretation,  there    may    be  other    sub- 
stantial  ones,  besides    those    immediately   expressed,  for 
the  passing  of  a  law  or  the  making  of  a  treaty.     Yet  the 
strongest   conjecture   is    that    which    arises   from   certain 
proof  that  the  will  was  actuated  by  some  reason,  operat- 
ing   as    a    sole    and    sufficient    motive.      For    there    are 
frequently    MANY    motives,    and    sometimes    the    will    is 
influenced  by  its   own   choice   independent   of   any  other 
reason.     In  the  same  manner  a  grant  made,  in  contemp- 
lation of  a  marriage,  will  be  void,  if  the  marriage  never 
takes  place. 

IX.  It  is  further  to  be  observed  that  many  words  have 
a  variety  of  acceptations,   some  more  limited  and   others 
more  extensive ;  which  may  be  owing  either   to  the  appli- 
cation of  a  general  name  to  a  particular   class  of  things, 
as  in  the  words    kindred  and  adoption;  or  to  the  use  of 
masculines  to  express  animals  both  of  the  male  and  female 
kind,  where  nouns  of  a  common  gender  are  wanting.     In 
terms  of  art  too,  words  are  often  taken  in  a  metaphorical 
or  extended  sense:  thus  in  the  civil    law   death   signifies 
banishment;  but  in  its  popular   acceptation  a    dissolution 
of  the  parts  of  the  natural  body. 

X.  In  promises  likewise,    some  things  are  of  a  favour- 
able, some  an  odious,  and  others  of  a  mixed  or  indifferent 
description.     Favourable  promises  are  those  which  contain 
an  equality  of  terms,  or  which  bear  some  relation  to  the 
common  good,  the  magnitude  and  extent  of  which  increases 
the  favour  of  the  promise :  so  that  all  engagements  more 
conducive  to  peace  than   to  war  are  to   be  considered  as 
those  of  a  favourable  complexion,  and  alliances  for  mutual 
defence  are  always   regarded   as  a  more    laudable   object 
than  those  for  offensive  war. 

Treaties  of  an  odious  kind  are  those  which  lay  greater 
burdens  on  one  party  than  on  the  other,  which  contain 
penalties  for  non-performance,  or  which  lead  to  an  abro- 
gation or  infraction  of  former  treaties.  Whereas,  though 
engagements  of  a  mixed  nature  may'  create  a  deviation 
from  former  treaties,  they  may  be  taken  either  in  a 


THE   RIGHTS   OF   WAR  AND   PEACE  181 

favourable  or  odious  light,  according  to  the  magnitude, 
or  object  of  the  change  produced.  If  it  be  for  the  sake  of 
peace,  it  is  better,  taking  all  circumstances  into  consid- 
eration, to  rank  them  with  those  of  a  favourable  kind. 

XL  The  distinction  made  by  the  Roman  law  between 
acts  of  equity  and  those  of  strict  justice,  cannot  GENERALLY 
be  applied  to  the  law  of  nations,  though  it  may  in  some 
cases  be  adopted.  Thus  in  any  transaction  between  the 
subjects  of  two  countries,  in  each  of  which  the  same 
form  of  legal  proceeding  is  observed,  the  parties  are 
supposed  to  treat  without  any  intention  of  deviating  from 
the  common  rule  and  form,  unless  they  have  expressly 
determined  to  the  contrary.  But  in  acts  for  which  no 
common  rule  is  prescribed,  as  in  donations  and  free 
promises,  there  the  parties  are  supposed  to  treat  accord- 
ing to  the  strict  letter  of  the  agreement. 

XII.  After  the  establishment  of  the  former  positions, 
the  subject  naturally  proceeds  to  the  rules  themselves, 
which  are  to  be  observed  in  the  interpretation  of  treaties. 
And  in  the  first  place  we  may  remark,  that  in  things, 
which  are  not  of  an  odious  nature,  words  are  to  be  taken 
strictly  in  their  popular  meaning,  and  where  they  admit 
of  exceptions,  or  have  more  significations  than  one,  it  is 
lawful  to  use  that  which  is  most  extensive.  As  it  has 
been  already  observed,  that  both  Logicians  and  Gram- 
marians frequently  use  particular  terms  in  a  general 
sense.  Thus  Cicero  in  pleading  for  Caecina,  justly  main- 
tains that  the  interlocutory  decree,  ordering  THAT  THE 

PERSON  EJECTED  FROM  HIS  INHERITANCE  SHOULD  BE  REIN- 
STATED IN  THE  POSSESSION,  implies  not  only  an  ejectment, 
but  extends  to  any  forcible  prevention  of  the  owner's 
taking  possession. 

In  things  of  a  favourable  nature,  if  the  parties  engaged 
are  acquainted  with  the  legal  principles,  upon  which  they 
proceed,  or  rest  upon  the  judgment  of  those  who  are  so, 
the  words  used  may  be  taken  in  their  most  extensive 
signification,  including  even  terms  of  art  and  of  law.* 

*  « It  is  a  fundamental  rule  of  construction,  that  penal  statutes  shall 
be  construed  strictly,  and  remedial  statutes  shall  be  construed  liber- 
ally. It  was  one  of  the  laws  of  the  twelve  tables  of  Rome,  that 
whenever  there  was  a  question  between  liberty  and  slavery,  the  pre- 
sumption should  be  on  the  side  of  liberty.  This  excellent  principle 
our  law  has  adopted  in  the  construction  of  penal  statutes:  for  when- 
ever any  ambiguity  arises  in  a  statute  introducing  a  new  penalty  or 
punishment,  the  decision  shall  be  on  the  side  of  lenity  and  mercy ;  or 
in  favour  of  natural  right  and  liberty :  or,  in  other  words,  the  decision 


182  HUGO   GROTIUS 

Again,  we  must  never  have  recourse  to  a  metaphorical 
interpretation,  except  where  the  literal  meaning  would 
lead  to  a  direct  absurdity,  or  would  defeat  the  intention 
of  a  treaty. 

On  the  other  hand  a  passage  may  be  interpreted  in  a 
more  limited  signification,  than  the  words  themselves 
bear,  if  such  interpretation  be  necessary,  to  avoid  injus- 
tice or  absurdity.  If  no  such  necessity  exist,  but  equity 
or  utility  manifestly  require  a  restriction  to  the  literal 
meaning,  it  must  be  most  rigidly  adhered  to,  except 
where  circumstances  compel  us  to  do  otherwise.  But  in 
things  of  an  odious  nature  a  figurative  expression  may 
be  allowed  in  order  to  avoid  inconvenience  or  injustice. 
Therefore,  when  any  one  makes  a  grant,  or  relinquishes 
his  right,  though  he  express  himself  in  the  MOST  GEN- 
ERAL terms,  his  words  are  usually  RESTRICTED  to  that 
meaning,  which  it  is  probable  he  intended.  And  in  cases 
of  this  kind,  the  hope  of  retaining  a  thing  is  sometimes 
taken  for  the  act  of  possession.  In  the  same  manner  it 
is  understood  that  subsidies  of  men,  promised  by  one 
party  only,  are  to  be  maintained  at  the  expence  of  the 
power,  who  requires  them. 

XIII.  It  is  a  famous  question  whether  the  word  ALLIES 
includes  only  those  who  were  such  at  the  time  of  mak- 
ing the  treaty,  or  those  who  might  afterwards  become  so : 
as  was  the  case  in  the  treaty  made  between  the  Roman 
people  and  the  Carthaginians  at  the  conclusion  of  the 
war  that  had  originated  in  a  dispute  about  Sicily,  by 
which  treaty  it  was  stipulated  that  both  powers  should 
forbear  attacking  the  allies  of  each  other.  Hence  the 
Romans  inferred  that  although  the  convention  made  with 
Asdrubal,  by  which  he  was  prohibited  from  passing  the 
Iberus,  had  been  of  no  service  to  them,  as  it  had  not 
been  ratified  by  the  Carthaginians,  yet  if  the  Cartha- 

shall  be  according  to  the  strict  letter  in  favour  of  the  subject.  And 
though  the  judges  in  such  cases  may  frequently  raise  and  solve  diffi- 
culties contrary  to  the  intention  of  the  legislature,  yet  no  further 
inconvenience  can  result,  than  that  the  law  remains  as  it  was 
before  the  statute,  and  it  is  more  consonant  to  principles  of  liberty, 
that  the  judge  should  acquit  whom  the  legislator  intended  to  punish, 
than  that  he  should  punish  whom  the  legislator  intended  to  discharge 
with  impunity.  But  remedial  statutes  must  be  construed  according 
to  the  spirit:  for  in  giving  relief  against  fraud,  or  in  the  furtherance 
and  extension  of  natural  right  and  justice,  the  judge  may  safely  go 
even  beyond  that  which  existed  in  the  minds  of  those  who  framed 
the  law.w — Christian's  Notes  on  Blackst.  Comm.  Introd.  p.  87. 


THE   RIGHTS   OF    WAR  AND   PEACE  183 

ginians  sanctioned  the  conduct  of  Hannibal  in  his  attack 
upon  the  people  of  Saguntum  with  whom  the  Romans, 
after  the  making  of  that  convention,  had  entered  into  an 
alliance,  they  should  consider  themselves  as  authorised 
to  declare  war  against  the  Carthaginians  for  having  vio- 
lated a  solemn  treaty.  Upon  which  Livy  reasons  in  the 
following  manner,  <(  By  the  clause  in  favour  of  allies  on 
both  sides,  there  was  sufficient  security  for  the  Sagun- 
tines.  For  there  was  no  limitation  of  the  words  to  those, 
who  were  allies  at  that  time,  nor  were  they  such  as  to 
exclude  either  power  from  making  new  alliances.  But  if 
both  sides  were  at  liberty  to  make  new  alliances,  who 
could  think  it  just  to  deprive  the  new  allies  of  that  pro- 
tection to  which  they  would  be  entitled  from  treaties  of 
amity?  The  exclusion  could  reasonably  go  no  further 
than  to  declare  that  the  allies  of  the  Carthaginians  should 
not  be  seduced  to  renounce  their  engagements,  nor  if 
they  did  so,  be  admitted  into  alliance  with  the  Ro- 
mans. ® 

The  last  passage  is  taken,  almost  word  for  word,  from 
the  third  book  of  Polybius.  On  which  we  may  observe 
that  the  word  ALLIES  may  strictly  mean  those,  who  were 
so  at  the  time,  when  the  treaty  was  made,  and,  without 
any  forced  interpretation,  may  also  be  extended  to  em- 
brace those,  who  afterwards  became  such.  To  which  of 
these  interpretations  the  preference  is  to  be  given  may 
be  seen  from  the  rules  above  given:  and  according  to 
those  rules,  it  will  be  found,  that  alliances  formed  after 
the  making  of  the  treaty  will  not  be  comprehended  in  it, 
because  it  relates  to  the  breach  of  a  treaty,  the  violation 
of  which  is  an  odious  act,  and  tends  to  deprive  the 
Carthaginians  of  the  liberty  of  redressing  themselves  by 
force  against  those  who  were  supposed  to  have  injured 
them ;  a  liberty  sanctioned  by  the  law  of  nature,  and  not 
to  be  abandoned  on  any  slight  occasion.  Were  the 
Romans  debarred  then  by  this  rule  from  making  any 
treaty  with  the  Saguntines,  and  defending  them  after 
they  became  allies?  No!  they  had  a  right  to  defend 
them,  not  by  virtue  of  any  treaty,  but  upon  principles 
of  natural  justice,  which  no  treaty  can  annul.  The 
Saguntines  therefore  with  respect  to  both  powers  were 
in  the  same  situation,  as  if  no  engagement  had  been 
made  in  favour  of  allies.  In  this  case,  it  was  no  breach 
of  treaty  for  the  Carthaginians,  upon  just  grounds,  to 
commence  hostilities  against  the  Saguntines.  nor  for  the 


184  HUGO   GROTIUS 

Romans  to  defend  them.  Upon  the  same  principle,  in  the 
time  of  Pyrrhus,  it  had  been  stipulated,  by  treaty,  be- 
tween the  Carthaginians  and  Romans,  that  if  either  of 
them  afterwards  entered  into  any  engagement  with 
Pyrrhus,  the  party  so  contracting  should  reserve  to  itself 
the  right  of  sending  succours  to  the  other,  if  attacked 
by  that  king.  Though  in  that  case  the  war  ON  BOTH 
SIDES  could  not  be  just,  yet  it  would  involve  no  infrac- 
tion of  any  treaty.  This  is  an  example  of  a  case  in 
equal  treaties. 

XIV.  The    case    of    an    unequal    treaty    may    be    put, 
where   it   is   agreed  that  one  of   the   confederate    parties 
shall    not    make    war,    without    the    consent,    or    by   the 
injunction    of    the    other,    which    was    stipulated    in    the 
treaty    between    the    Romans    and    Carthaginians,    after 
the  conclusion  of  the  second  Punic  war.     When  the  term 
WAR  is  applied   to  war  of  every  description,  particularly 
to    offensive   rather    than    defensive    war;    in    a    dubious 
case,  it  must  be  limited  to   its   proper   signification,  lest 
the   treaty  should   operate  as  too   great  a  restraint  upon 
the    liberty   of    that   power,    which    has   engaged    in    the 
unequal  treaty. 

XV.  Of   the   same  kind   is   the  promise   given   by  the 
Romans,  that  Carthage  should  be  free,  which  could  never 
mean    the    enjoyment    of    complete    independence,   by    a 
people,  who   had   long   before   lost   the   right  of   making 
war,    and   many  of   their   other   privileges.     Yet    it   left 
them  some  degree  of  liberty,  so  much  at  least,  that  they 
should  not  be  obliged  to  remove  the  seat  of  their  govern- 
ment at  the  command  of  any  foreign  power,  and  gave  them 
a  pledge  that  their  city  should  not  be  disturbed.     It  was 
in  vain   then  for  the   Romans   to  urge   that  it  was   only 
the  city  which  was  intended.     Whereas   those  acquainted 
with  the  use  of  metaphorical  language  know  that  by  the 
city   is   frequently   meant    the    inhabitants,    and    govern- 
ment with    its   privileges,  and    not   the   mere   walls   and 
houses.     For   the    term,    BEING    LEFT    FREE,    implies    that 
the  people  should  enjoy  their  own  laws. 

XVI.  The  nature  of  personal  and  real  treaties  is  a  fre- 
quent subject  of  inquiry,  which  may  properly  be  examined 
in   this   place.      Indeed  in   all   transactions    with    a    free 
people,  the  engagements  entered  into  with  them  are  of  a 
real  nature;  because  the  subject  of  them  is  a  permanent 
thing.      So   permanent,    that,    although   a   republican    be 
changed  into  a  regal  government,  a  treaty  will  remain  in 


THE  RIGHTS   OF  WAR  AND   PEACE  185 

force :  for  the  political  body  continues  the  same,  although 
the  head  be  changed,  and  the  sovereign  power,  which 
before  was  diffused  among  many  members,  is  now  cen- 
tered in  one.  Yet  this  rule  will  admit  of  an  exception, 
where  it  is  evident  that  the  specific  form  of  government 
made  an  essential  part  of  the  treaty,  as  when  two  states 
make  a  federal  union  for  the  mutual  preservation  of  their 
political  systems.  But  if  a  treaty  be  made  with  a  KING 
OR  SOVEREIGN  PRINCE,  it  does  not  consequently  follow  that 
it  is  to  be  considered  only  as  a  PERSONAL  and  not  a  REAL 
treaty.  For  the  name  of  a  person  may  be  inserted  in 
a  treaty,  not  merely  to  give  it  the  character  of  a  personal 
treaty,  but  to  point  out  the  contracting  parties.  And  this 
will  be  still  more  evident,  if,  as  is  usual  in  most  treaties, 
a  clause  is  annexed  declaring  it  to  be  perpetual,  or  made 
for  the  good  of  the  kingdom,  or  with  the  king  himself,  and 
his  successors,  and  it  will  also  be  considered  as  a  real 
treaty,  even  if  it  is  stated  to  be  passed  for  a  definite  time. 
The  treaty  between  the  Romans  and  Philip,  King  of  the 
Macedonians,  seems  to  have  been  of  this  description, 
which,  upon  the  refusal  of  his  son  to  continue  it,  gave 
rise  to  a  war. 

Other  forms  too  besides  those  already  named,  and  the 
subject  itself,  will  frequently  supply  no  improbable 
grounds  of  conjecture.  But  if  the  conjectures  are  equal  on 
both  sides,  it  will  remain  that  favourable  treaties  are  sup- 
posed to  be  real  or  permanent,  and  odious  ones  only  per- 
sonal. All  treaties  of  peace  or  commerce  are  favourable. 
Yet  all  treaties  of  war  are  not  odious,  especially  those 
of  the  defensive  kind,  such  a  character  belonging  only  to 
offensive  wars,  from  the  contemplation  of  the  calamities 
which  they  inflict.  It  is  presumed  too,  that  in  the  forma- 
tion of  treaties,  the  character  of  each  party  is  taken  into 
the  account,  and  that  both  are  persuaded  that  neither  of 
them  will  commence  hostilities,  but  from  just  and  impor- 
tant causes. 

What  is  usually  said  of  societies  terminating  with  the 
death  of  the  parties,  has  no  connection  with  this  subject, 
but  relates  to  private  societies,  the  cognizance  of  which 
belongs  to  the  civil  law.  Whether  it  was  right  or  wrong 
therefore  in  the  people  of  Fidenae,  the  Latins,  Tuscans 
and  Sabines,  upon  the  death  of  Romulus,  Tullus,  Ancus, 
Priscus,  Servius,  to  abandon  the  respective  treaties  made 
with  those  kings,  it  is  impossible  for  us  now  to  decide, 
those  treaties  being  no  longer  extant.  On  the  same  point, 


1 86  HUGO   GROTIUS 

Justin  maintains  a  discussion,  whether  those  states,  which 
had  been  tributary  to  the  Medes,  were  upon  a  change  of 
government,  released  from  their  obligations.  For  the 
thing  to  be  considered  is,  whether  the  convention  with 
the  Medes  had  been  a  voluntary  act  of  their  own.  Indeed 
the  argument  of  Bodinus  can  by  no  means  be  admitted, 
which  is,  that  treaties  made  with  kings  extend  not  to 
their  successors;  For  the  obligation  of  an  oath  is  limited 
to  the  person  of  him,  who  takes  it.  It  is  true  that  the 
oath  itself  can  bind  only  the  person  who  takes  it;  yet 
the  engagements,  which  it  confirms,  will  be  binding  upon 
his  heirs.  Nor  is  it  to  be  taken  for  an  established  maxim, 
that  oaths  are  the  only  foundation,  on  which  treaties 
rest.  The  engagement  itself  is  sufficiently  binding,  the 
oaths  being  only  added  to  give  it  the  greater  sanctity. 
In  the  Consulship  of  Publius  Valerius,  the  Roman  people 
had  taken  an  oath  to  muster  at  the  command  of  the 
Consul.  Upon  his  death,  he  was  succeeded  by  Lucius 
Quintius  Cincinnatus.  Some  of  the  tribunes  began  to 
quibble,  pretending  that  the  people  were  released  from 
their  obligation.  Upon  which  Livy,  in  his  third  book, 
remarks,  that  <(at  that  time  they  had  not  degenerated 
into  the  disregard  of  religious  obligations,  which  marked 
his  age :  nor  did  every  one  allow  himself  a  latitude  in  ex- 
plaining oaths,  and  laws,  but  thought  that  he  was  bound 
to  conform  to  their  literal  meaning.* 

XVII.  A  treaty  made   with  a  king  continues  in  force, 
even    though  the   same   king   or  his  successor  should  be 
banished  from  the  kingdom  by  rebellious   subjects.     For 
the   rights  of  a  king,  among  which  his  alliances  may  be 
reckoned,  remain  unimpaired,  during  the  temporary  loss 
of  his  throne.     A  case  to  which  the  expression  of  Lucan 
may  be  applied,  that  "order  never  loses  its  rights  under 
any  change  of  circumstances.* 

XVIII.  On  the  other  hand,  any  war,  if  it  be  with  the 
consent  of   the  lawful  sovereign,  made  upon  the  invader 
of   his    kingdom,  or  upon  the  usurper  of  a  free  people's 
rights    before  his  usurpation  has  received  public  sanction, 
will  be  deemed  no  infraction  of  any  former  treaty  with 
the   established   authorities   of  that  kingdom  or  country. 
For  acts  of  usurpation  convey  not  immediately  any  right 
beyond  that   of  bare   possession.     And  this  is  what  was 
said  by  Titus  Quintius  to  Nabis,  (<  We  made  no  treaty  of 
alliance  and  amity  with  you,  but  with  the  just  and  law- 
ful  king  of  the   Lacedaemonians."     For  in   treaties   the 


THE   RIGHTS   OF   WAR  AND   PEACE  187 

characters  of  KING,  SUCCESSOR,  and  the  LIKE,  carry  with 
them  an  idea  of  a  peculiar  and  lawful  right,  which  must 
always  render  the  cause  of  USURPERS  odious. 

XIX.  It  was  a  question  formerly  discussed  by  Chrysip- 
pus,  whether  a  prize  promised  to  him,  who  first  reached 
the  goal,  could  be  given  to  two,  who  reached   it  at  the 
same  time,  or  to  neither.     But  as   rewards  of   merit  are 
things  of  a  favourable  nature,  it  is  the  juster  opinion  that 
they   should   divide   the  prize.      Although   Scipio,    Caesar 
and    Julian    acted    more    liberally,    in    giving    the    entire 
prizes  to  each  of  those   who  had  ascended  the   walls  to- 
gether. 

What  has  been  already  said  upon  the  literal  or  figur- 
ative application  of  the  words,  in  interpreting  treaties, 
will  be  sufficient. 

XX.  There  is  also  another  kind  of  interpretation,  arising 
from    conjectures,    which    apply    exactly    to   the    signifi- 
cation   of    the    words    containing    a    promise    or    engage- 
ment;    and    that    is    of    a    twofold    description,    either 
extending  or  limiting  the  meaning.     But  it  is  more  diffi- 
cult to  extend  than  to  limit  the  acceptation  of  expressions. 
For  as  in  all  matters  the  want  of  one  essential  requisite 
is   sufficient   to   defeat   their  effect;    so   in   engagements, 
those  conjectures,  which   extend   the    obligation   are    not 
readily  to  be   admitted.     And   it   is  much  more  difficult 
here   than   in   the  case   above,  mentioned;    where    words 
allow   a   more    extensive    but    less    familiar    acceptation. 
For  here  it  is  seeking  a  conjecture  to  extend  the  words 
of  a  promise :  the  conjecture  therefore,  which  is  to  create 
an  obligation,  ought  to  be  very   certain.     Nor  is  it  suffi- 
cient  that   there   is   some    resemblance   in  the  motives; 
for  the  motive   produced   to   confirm   an   obligation  must 
be  exactly  the  same   as  that  of  the  case  under  consider- 
ation.    Neither  is  it  always  proper  to  allege  a  motive  for 
extending  an  obligation;  because,  as  it  has  been  already 
said,  motives,  in  actuating  us  to  form  engagements,  may 
sometimes  be  swayed  by  the  will  which  often  acts  inde- 
pendently of   any  just   motive.      To  authorise   therefore 
such  an  extension,  it   must  be   evident  that   the  motive, 
produced  as  an  example  and  authority,  was  the  sole  and 
effectual  cause,  which   influenced  the  promiser,  and  that 
he  considered  it   in  the   same  extensive   view;  for  other- 
wise  it  would  have   been   unjust   and   prejudicial.     The 
ancients  in    their  treatises   on   rhetoric    follow  the  same 
rule,  when,  in  speaking  of   the  LETTER  and  DESIGN,  they 


1 88  HUGO   GROTIUS 

give  us  one  invariable  form  of  expressing  the  same  senti- 
ment, but  in  their  syllogisms  or  arts  of  reasoning  they 
point  out  a  way  of  interpreting  what  is  not  written,  by 
what  is  written.  In  the  same  manner  too  legal  writers 
lay  down  rules  for  avoiding  frauds.  Now  if  at  a  time, 
when  there  was  no  other  mode  of  fortifying  towns,  than 
by  surrounding  them  with  walls,  it  were  stipulated  that 
a  certain  place  should  not  be  so  surrounded,  it  is  evident 
that  to  employ  any  other  means  of  fortification  would  be 
a  breach  of  that  treaty. 

As  in  the  above  case  the  interpretation  must  be  ex- 
tended to  guard  against  every  possible  evasion,  so  in  the 
following  example,  the  prohibition  to  assemble  an  armed 
force  to  assail  us  includes  all  kinds  of  violence  and  force, 
by  which  our  lives  and  security  may  be  endangered.* 

XXI.  Hence  may  be  solved   the   question  to  be  found 
in   Gellius,  respecting   a   commission,  whether   it  can  be 
fulfilled  by  doing,  not    the   immediate   act  required,  but 
some  thing  equivalent  to  it,  or  in  a  manner  more  bene- 
ficial  than   in   the   form   prescribed.     For  this  deviation 
from  the  written  rule   may  be  proper  and  lawful,  where 
the  prescribed  form  is  not  essential  towards  attaining  the 
object,  or   where,  by  departing   from   it,  that  object  can 
be  better   accomplished,  according  to   the   answer  given 
by  Scaevola,  that  the  person  required  to  be  bail  and  se- 
curity for  another,  may  give  an  order  to  a  third  person 
to   pay  that   money  to   the   creditor.     But   where  such  a 
latitude  of  interpretation  is  not  evidently  admissible,  we 
must  adhere  to  what  Gellius  has  said  in  the  same  place, 
that  it  would  be  a  dissolution  of  all  trusts,  if  the  party 
acting  in  commission  were,  in   all   cases,  left  to  his  own 
discretion,  rather  than  bound  by  his  written  instructions. 

XXII.  An  interpretation,    restricted  more   closely  than 
the  literal  signification  of  the  words  containing  a  promise 
absolutely  requires,  may  arise  either  from   some  original 
defect  in  the  intention  of  the  promiser,  or  from  some  sub- 
sequent emergency  repugnant  to  such  intention.     Thus  if 
it  were  evident  that   an   absurdity  would  follow  the  ful- 
filment of  a  promise,  this  would  be  sufficient  to  prove  an 

*The  case  of  a  promise  made  on  the  supposition  of  a  posthumous 
child's  dying,  instanced  by  our  author  in  this  place,  bears  so  near  a  re- 
semblance to  that  of  a  father's  bequeathing  his  property  to  another, 
believing  his  son  to  be  dead,  that  it  is  omitted  in  this  chapter  having 
been  already  given  under  the  head  of  erroneous  promises  in  the  xi. 
chapter  and  6th  section  of  this  book. — (Translator.) 


THE   RIGHTS   OF   WAR  AND   PEACE  189 

original  defect  in  the  intention,  because  no  man  can  be 
supposed  to  have  deliberately  intended  doing  an  absurd 
act.  Or  if  the  sole  and  effectual  reason,  by  which  the 
promise  was  influenced,  should  have  ceased,  the  obliga- 
tion also  would  be  void,  the  sole  ground  on  which  it 
rested  being  no  longer  in  existence. 

XXIII.  In  the  next  place,  where   any  sufficient  reason 
can  evidently  be  assigned  for  a  promise  or  engagement, 
it  is  not  the  substance  of  the  promise  itself,  which  is  to 
be  considered,  so  much  as  the  reason  for  which  that  prom- 
ise was  given. 

XXIV.  Thirdly,  the  contending  parties  must  always  be 
supposed    to    have    in     contemplation    the    subject,    and 
nothing  but  the   subject,    however  extensive    a   significa- 
tion the  words  may  seem  to  bear.     This    method   of   in- 
terpretation also   is    handled    by   the    ancient    rhetorical 
writers,  in  speaking  of  expression   and   design,  and  they 
place  it  under  the  head  of  VARIATIONS  IN  OPINION. 

XXV.  In  speaking  of  motives  and  reasons,  it  is  proper 
to    observe,    that   they    some   times   comprehend   things, 
considered   not   according   to   their   actual   existence,  but 
according  to  their   moral  consequences:  in  which    case  it 
is  by  no  means  right  to  limit   the  words    of   a   treaty  to 
their  literal  meaning,  but  the  utmost  extent  of  interpreta- 
tion is  allowable,  in  order  to  maintain  the   spirit  as  well 
as  the  letter  of  such  treaties.     Thus   if  it   be    stipulated 
that  no  troops   or   ships   shall   be    brought   to    a    certain 
place,  or  within    a  certain   distance,  the   prohibition   ex- 
cludes ALL  ships  or  troops   from    being   brought  thither, 
even  under  the  fairest  and  most  harmless  pretences.  For 
the  purport  of  the  treaty   is   to    guard    not   only  against 
actual  mischief    but  even  against  remote  danger. 

It  is  a  point  often  disputed,  whether  the  continuance 
of  things  in  their  present  state  is  a  tacit  condition,  on 
which  the  fulfilment  of  all  promises  is  founded.  A  posi- 
tion that  can  by  no  means  be  maintained,  unless  it  ap- 
pears that  such  continuance  was  the  sole  motive  upon 
which  the  treaties  were  made.  As  in  many  parts  of 
history,  we  read  of  ambassadors  having  relinquished 
their  missions,  and  returned  home,  upon  finding  the  state 
of  things  so  changed  that  the  object  of  their  embassies 
was  at  an  end. 

XXVI.  When   an   emergency   arises    repugnant  to   the 
general  intention  of  an  act,  it  is  explained  by  the  ancient 
masters  of    rhetoric  under    the    head  of   expression   and 


190  HUGO   GROTIUS 

design.  Now  this  variation  between  the  emergency  and 
the  intention  is  of  a  twofold  nature.  For  the  will  and 
its  intention  are  to  be  collected  either  from  natural  rea- 
son or  from  some  outward  sign.  In  judging  of  the  will 
by  natural  reason,  Aristotle,  who  has  treated  the  subject 
with  great  accuracy,  makes  the  MIND  the  SEAT  OF  JUDG- 
MENT, and  the  WILL  the  SEAT  OF  EQUITY,  which  he  nobly 
defines  to  be  the  correction  of  that,  wherein  the  law,  by 
reason  of  its  universal  nature  is  defective.* 

And  upon  this  principle  all  wills  and  treaties  ought  to 
be  interpreted.  For  as  all  cases  could  neither  be  fore- 
seen nor  expressed  by  the  lawgiver,  it  is  necessary  to 
leave  a  power  of  excepting  the  cases,  which  he  himself 
would  have  excepted  if  he  were  present.  Yet  this  is  not 
to  be  done  upon  light  grounds;  for  that  would  be  exer- 
cising a  controul  over  the  acts  of  another;  but  is  only 
to  be  established  upon  the  clearest  evidence  and  strong- 
est proofs.  The  clearest  proof  we  can  have  of  a  want  of 
equity,  is  where  following  the  literal  meaning  of  the 
words  would  be  unlawful,  that  is,  repugnant  to  natural 
or  divine  precepts.  For  such  things,  as  are  incapable  of 
obligation,  are  necessarily  to  be  excepted.  Quintilian 
the  elder,  says,  <(  some  things  although  comprehended 
within  the  meaning  of  no  law  form  a  natural  exception.* 
Thus  any  one,  who  has  promised  to  return  a  sword,  that 
has  been  given  up  to  him,  ought  not  to  return  it  into 
the  hands  of  a  madman,  as  danger  might  result  from  it 
to  himself  or  to  other  innocent  persons.  Likewise  a  thing, 
which  has  been  deposited  with  any  one,  ought  not  to  be 
returned  to  the  hands  of  the  person,  who  gave  the  pledge, 
if  the  real  owner  demands  it.  I  prove  this  says  Tripho- 
nius  to  be  justice,  which  assigns  to  every  one  his  own 
without  disturbing  the  still  juster  claims  of  another.  For 
the  reason,  it  has  been  already  observed,  is  founded  on 

*«The  variety  of  human  transactions  cannot  be  comprised  within 
general  rules.  Occasional  decrees  therefore  become  requisite;  which 
vary  with  each  variation  of  circumstances,  for  the  measure  of  what  is 
indefinite  must  be  indefinite  itself,  like  the  leaden  ruler  in  the  Lesbian 
architecture,  which  changes  its  own  shape  according  to  that  of  the  stones 
to  which  it  is  applied.  It  is  manifest,  therefore,  that  equity  is  a  species 
of  justice,  and  contrasted  with  another  species  to  which  it  is  preferable. 
A  man  of  equity  is  he  who  deliberately  and  habitually  exercises  this 
virtue;  who  prefers  it  in  all  his  dealings  to  the  rigour  of  justice;  and 
who,  even  when  the  law  is  on  his  side,  will  not  avail  himself  of  this 
advantage  to  treat  others  injuriously  or  unhandsomely. » — Aristot. 
Eth.  b.  v.  ch.  x. 


THE   RIGHTS   OF   WAR  AND   PEACE  191 

the  institution  of  property,  which  makes  it  unjust-  not  to 
return  a  thing  when  the  real  owner  is  known. 

XXVII.  The  need  of  equity  too  will  appear  in  cases, 
where  following  the  literal  meaning  of  the  words  will 
not  be  absolutely  unlawful,  yet,  upon  a  fair  estimation, 
will  be  found  too  hard  and  intolerable.  It  might  impose 
a  hardship  inconsistent  with  the  general  condition  of 
human  nature,  or,  upon  comparing  the  person  and  mat- 
ter under  consideration  with  each  other,  it  might  be 
found  at  variance  with  the  general  intent  of  all  law, 
which  is  to  prevent  evil  and  to  redress  injury.  Thus,  if  a 
person  has  lent  a  sum  of  money,  or  any  other  thing,  for 
a  CERTAIN  time,  he  may  justly  require  the  repayment  or 
restoration  of  it  WITHIN  that  time,  if  he  has  great  need 
of  it  himself:  for  acts  of  kindness  are  of  such  a  nature, 
that  no  one  can  be  supposed  intentionally  to  bind  himself 
thereby  to  manifest  inconvenience  or  prejudice.  In  the 
same  manner  a  sovereign,  who  has  promised  assistance 
to  an  ally,  will,  IN  EQUITY,  be  excused  from  fulfilling  his 
engagement,  if  he  wants  all  his  strength  at  home  to  ward 
off  danger  or  hostilities.  The  grant  also  of  immunities  or 
privileges  in  ORDINARY  cases,  cannot  be  pleaded  as  an 
exemption  or  exception  from  the  services,  which  the  state 
in  PARTICULAR  emergencies  requires. 

From  the  above  instances  it  appears  that  Cicero  has 
too  loosely  worded  his  proposition,  "that  such  promises, 
as  are  prejudicial  to  the  person,  to  whom  they  are  given, 
are  not  to  be  kept,  nor,  if  they  are  more  prejudicial  to 
the  party  giving,  than  beneficial  to  the  person  receiving 
them."  For  it  should  not  be  left  to  the  promiser  to 
judge,  whether  the  fulfilment  of  his  engagement  will  be 
serviceable  to  the  party  receiving  it,  except  in  the  case 
of  the  madman  cited  above:  nor  is  any  TRIVIAL  or  IM- 
AGINARY prejudice  that  might  result  from  it,  sufficient  to 
release  the  obligation.  But  it  ought  to  be  such,  as,  ac- 
cording to  the  nature  of  the  act,  would  necessarily  be 
supposed  to  form  an  exception.  Thus  any  one,  having 
promised  his  assistance  to  a  neighbour  at  a  certain  period, 
would  not  be  bound  to  his  engagement,  if  he  were  de- 
tained at  home  by  the  sickness  of  a  father  or  a  child.  A 
case,  which  Cicero,  in  his  first  book  of  offices,  has  put  in 
the  following  terms,  a  If  any  one  has  undertaken  to  man- 
age a  cause,  and,  in  the  mean  time,  his  son  is  taken  ill, 
it  will  be  no  breach  of  duty  in  him  not  to  perform  what 
he  has  promised.8  There  is  a  passage  in  the  fourth  book 


192  HUGO   GROTIUS 

of  Seneca,  ON  BENEFITS,  to  the  same  effect.  <(  I  am  lia- 
ble, says  he,  to  be  charged  with  levity,  and  a  breach  of 
faith,  if,  things  continuing  as  they  were,  when  I  made  a 
promise,  I  do  not  perform  my  engagement.  But  if  any 
change  has  taken  place,  it  leaves  me  at  liberty  to  recon- 
sider the  matter,  and  releases  the  obligation.  I  promised 
my  support  in  court,  and  it  afterwards  appeared  that  the 
cause  would  be  prejudicial  to  my  own  father.  I  prom- 
ised to  take  a  journey,  but  afterwards  heard  that  the  road 
was  infested  with  robbers.  I  promised  my  presence  on 
some  particular  occasion,  but  was  prevented  from  attend- 
ing by  the  sickness  of  a  son.  In  all  these  cases,  to  bind 
me  to  my  engagement,  the  circumstances  ought  to  re- 
main exactly  the  same  as  they  were  when  I  made  the 
promise. w 

XXVIII.  It  has  been  said  that  there  are   other  indica- 
tions of  intention,  which   require   an  equitable  exception 
in  favour  of  the   present   case.     And  among  such   proofs 
there  can  be  nothing  stronger  than  the  same  words  used 
in    another    place,  not    where    they    directly    oppose    the 
present  meaning,  for  that  would   amount  to  a  contradic- 
tion, but  where  they  clash  with  it,  owing  to  some  unex- 
pected emergency,  which   the    Greek    Rhetoricians  call  a 
circumstantial  disagreement.  * 

XXIX.  When  there  is  any  accidental  collision  between 
one  part  of  a  written  document   and   another,   Cicero,  in 
the  second  book  of  his  treatise  ON  INVENTION,  has  given 
rules  for  deciding  which  of  them  ought  to  have  the  pref- 
erence.    Though  his   arrangement  is   not  very  accurate, 
yet  it  is  by  no  means  to  be  neglected.    To  supply  there- 
fore this  defect  of   accuracy,  the   rules   may  be  digested 
in  the  following  order. 

In  the  first  place,  a  PERMISSION  ought  to  give  way  to  a 
COMMAND:  because  a  permission  appears  to  be  granted 
only  in  case  there  is  no  weightier  objection  than  its  being 

*  Owing  to  circumstances  there  may  be  a  variation  in  the  conduct, 
and  yet  no  change  in  the  principles  of  a  state.  This  must  frequently 
happen  in  the  commercial  regulations  between  different  countries,  who 
are  obliged  to  vary  their  means  to  secure  the  unity  of  their  end.  Or 
if  in  a  treaty  between  two  nations,  it  is  declared  there  shall  be  PER- 
PETUAL amity,  and  a  subsequent  declaration  of  war  by  one  of  the 
parties  pronounces  such  amicable  relations  to  be  at  an  end,  here  there 
is  no  variation  in  PRINCIPLE  but  in  CIRCUMSTANCES,  which  render  such  a 
dissolution  of  the  amity,  that  was  originally  intended  to  be  perpetual, 
necessary  to  the  welfare  and  preservation  of  that  power,  the  sole 
object  of  all  treaties. 


THE   RIGHTS   OF   WAR  AND   PEACE  193 

an  exception  to  a  positive  precept,  nor  any  preponder- 
ance in  favour  of  an  opposite  determination.  Conse- 
quently, as  the  writer  to  Herennius  says,  what  is 
positively  prescribed  is  more  powerful  than  a  bare  per- 
mission. 

In  the  next  place  what  is  required  to  be  one  at  a 
FIXED  time  should  have  the  preference  to  what  may  be 
done  at  ANY  time.  From  whence  it  follows  that  the 
PROHIBITIONS  of  a  treaty  are  generally  of  more  weight 
than  its  INJUNCTIONS:  because  the  prohibitory  power  op- 
erates at  ALL  times.  But  it  is  not  so  with  injunctions, 
unless  an  express  time  for  their  fulfilment  is  named,  or 
they  contain  a  tacit  prohibition. 

Among  those  treaties,  which,  in  the  above  named  re- 
spects, are  equal,  the  preference  is  given  to  such  as  are 
more  particular,  and  approach  nearer  to  the  point  in 
question.  For  where  particulars  are  stated,  the  case  is 
clearer,  and  requires  fewer  exceptions  than  general 
rules  do.* 

Those  prohibitions  which  have  a  penalty  annexed  to 
them,  are  of  greater  weight  than  those,  which  have  not; 
and  those  with  a  greater  penalty  are  enforced  in  prefer- 
ence to  those  that  have  a  less.  Those  engagements  also 
which  are  founded  upon  causes  of  less  magnitude  and 
importance  ought  to  give  way  to  those  which  have  more 
laudable  and  useful  objects  in  view. 

Lastly  it  is  to  be  observed  that  a  subsequent  law  or 
treaty  always  repeals  a  former. 

From  what  has  been  said  an  inference  may  be  drawn 
in  favour  of  sworn  treaties  or  agreements  that  they 
ought  to  be  taken  in  the  most  usual  acception  of  the 
words,  rejecting  all  implied  limitations  and  exceptions, 
and  such  as  are  not  immediately  necessary  to  the  subject. 
Consequently  in  a  case,  where  a  sworn  treaty  or  engage- 
ment may  happen  to  clash  with  another  not  enforced  by 
the  obligation  of  an  oath,  the  preference  ought  to  be 
given  to  the  former. 

XXX.  It  is  often  asked  whether  in  doubtful  points,  a 
contract  should  be  deemed  perfect,  before  the  writings 

*To  illustrate  the  nature  of  GENERAL  AND  PARTICULAR  cases,  the 
following  example  is  taken  from  the  Puffendorf: — «  One  law  forbids 
us  to  appear  in  public  with  arms  on  holidays :  another  law  commands 
us  to  turn  out  under  arms  and  repair  to  our  posts,  as  soon  as  we  hear 
the  sound  of  the  alarm  bell.  The  alarm  is  rung  on  a  holiday.  In 
such  case  we  must  obey  the  latter  of  the  two  laws,  which  creates  an 
exception  to  the  former.*  —  Jur.  Gent,  lib.  v.  c.  xii.  sect  23. 
13 


194  HUGO   GROTIUS 

are  made  and  delivered.  We  find  in  Appian's  history  of 
the  Mithridatic  war,  that  it  was  upon  this  very  ground 
Murena  objected  to  the  convention  between  Sylla  and 
Mithridates.  However  it  appears  plain,  unless  it  has 
been  settled  to  the  contrary,  that  writing  ought  to  be 
considered  admissible  as  evidence  of  a  contract,  though 
not  as  part  of  the  substance,  otherwise  it  is  usually  ex- 
pressed, as  in  the  truce  with  Nabis,  which  was  to  be 
ratified  from  the  day  the  terms  were  WRITTEN  and  DE- 
LIVERED to  him. 

XXXI.  We  can  by  no  means  admit  the  rule  laid  down 
by  some  writers,  who  maintain,  that  all  engagements  of 
kings,  and  states,  ought  to  be  explained,   as   far   as  it  is 
possible,  upon  the   principles   of  the  Roman  law:  unless 
indeed  it  can  be  made  to  appear  that  among  some  states, 
in    their   intercourse    with    each    other,  the    CIVIL  LAW  is 
received   as   the   LAW   OF   NATIONS;    a  presumption  which 
ought  not  to  be  hastily  granted. 

XXXII.  As  to  the  doubt,  which  Plutarch   advances  in 
his  Symposiacs,  whether  the  words  of  the  party  offering, 
or  those  of  the  one    accepting    a   condition   ought    to  be 
most  attended  to,  it  appears  that  where  the  party  accept- 
ing the  terms  is  the  promiser,  the   nature  and  substance 
of   the    transaction   will   depend   upon  his  words,  if  they 
are  absolute  and  unqualified.     For  if  the  offer  is  regard- 
ed as  a  positive  engagement  to  do  certain  acts,  then  the 
full  extent  of  it  will  be  seen  by  the  necessary  repetition 
of   the   same   words   in   the   promise.     But  before  a  con- 
dition is  accepted,  it  is  evident,  as  was  seen  in  the  chap- 
ter on  promises,  that   the   promiser  is   not   bound  to  its 
fulfilment;  for  no   right  has  been  conferred  by  the   one 
party,  or  acquired  by  the  other.     Therefore   the   offer  of 
a  condition   of   this  kind   does   not   amount  to  a  perfect 
promise. 


CHAPTER  XVII. 

ON  DAMAGES  OCCASIONED  BY  INJURY  AND  THE  OBLIGATION 
TO  REPAIR  THEM. 

On  Damages  occasioned  by  injury,  and  the  obligation  to  repair  them 

—  Every  misdemeanor  obliges  the  aggressor  to  repair  the  loss — By 
loss  is  meant  any  thing  repugnant  to  right  strictly  so  called  —  Dis- 
tinction between  fitness  and  strict  right  —  Loss  or  diminution  of  pos- 
session includes  every  injury  done  to  the  produce  as   well  as  the 
property  itself  —  Loss  estimated  from  the  time  that  gain  ceases  — 
Injuries  done  by  principals  —  By  accessories  —  Injuries  done  by  the 
neglect  of  principal  or  of  secondary  agents  —  What  persons  are  im- 
plicated in  those  charges,  and  in   what  degrees  —  The  parties   en- 
gaged answerable  for  all  consequences  —  The  case  where  homicide 
or  any  other  act  of  violence  ensues — Case  of  robbery — Or  theft  — 
Promises  obtained  through  fraud  or  unjust  fear — In  what  cases  the 
consequences  are  imputable  to  the  suffering  party  —  How   far  the 
law  of  nations  authorises  states  to  take  advantage   of  an   enemy's 
fear  —  How  far  sovereigns  are  answerable  for  any  acts  of  violence 
committed  by  their  subjects  —  The  case  where  subjects  in  violation 
of  their  sovereign's  permission  and  orders   commit   acts   of  piracy 
upon  allied  or  neutral  states — No  one   answerable  by  the   law  of 
nature  for  the  mischief  done  by  his  cattle,  his  slaves,   or  his  ship 

—  Damages  allowed  for  injuries   done   to   reputation   or   honour  — 
What  kind  of  reparation  allowed. 

I.  IT  HAS  been  said  above  that    the    rights    due   to   us 
arise  from  three  sources,  which  are  contract,  injury  and 
law.     It  is  unnecessary  here  to  dwell  upon  the  nature  of 
contracts  which  has  been  already  so  fully  discussed.     The 
next  point  therefore  to  which  we  proceed   is    an   inquiry 
into  the  rights   resulting   to   us    from    injuries   received. 
Here  the  name  of  crime   or  misdemeanor   is   applied   to 
every  act  of  commission  or  neglect  repugnant  to  the  du- 
ties required  of  all  men,  either  from  their  common  nature 
or  particular  calling.     For  such  offences  naturally  create 
an  obligation  to  repair  the  loss  or  injury  that  has   been 
sustained. 

II.  By   loss  is   meant  a  diminution   of   what    any  one 
possesses,  whether  it  be  a  right  derived  to  him  purely 
from  the  law  of  nature,  or  from   the  addition   of  human 
authority,  that  is  from  the  law  of  property,  contract,  or 
civil  law.     God   has   given  life  to   man,  not   to  destroy, 

(195) 


196  HUGO   GROTIUS 

but  to  preserve  it;  assigning  to  him  for  this  purpose  a 
right  to  the  free  enjoyment  of  personal  liberty,  reputa- 
tion, and  the  controul  over  his  own  actions.  The  man- 
ner, in  which  property  and  contracts  convey  to  any  one 
a  right  to  things,  as  well  as  to  the  service  of  another, 
has  been  shewn  in  the  preceding  part  of  this  treatise. 
In  the  same  manner  from  the  law  every  man  derives 
his  peculiar  right;  because  the  law  has  the  same,  if  not 
greater  power  over  persons  and  things  than  individuals 
themselves  have.  Thus  by  the  appointment  of  law,  a 
ward  has  a  right  to  demand  the  strictest  diligence  of  a 
guardian,  the  state  of  a  magistrate,  and  not  only  the 
state,  but  every  subject  has  a  right  to  require  it;  where 
the  law  expressly  declares  or  evidently  implies  that 
certain  acts  shall  be  performed.  But  the  bare  circum- 
stance of  an  action  being  fit  or  proper  gives  not  the 
right  of  POLITICAL  justice  to  demand  its  performance, 
nor  does  the  neglect  of  it  entitle  the  party  suffering  to 
any  legal  redress.  Because  it  does  not  follow  that  a 
thing  must  belong  to  a  person  because  it  is  fit  or  bene- 
ficial for  him.  Thus,  as  Aristotle  says,  there  is  no  actual 
injustice,  though  it  may  be  illiberal  to  refuse  assisting 
another  with  money.  To  the  same  purpose  Cicero,  in  his 
speech  for  Cneius  Plancus,  says,  that  giving  their  votes 
to  whom  they  please,  or  withholding  them  if  they  think 
proper,  is  the  true  characteristic  of  a  free  people.  He  after- 
wards, indeed,  corrects  his  assertion  by  adding,  that  they 
may  happen  to  do  what  they  like,  rather  than  what  they 
ought  to  do,  taking  the  word  OUGHT  to  signify  propriety. 

III.  A  precaution  is  necessary  here,  in  order  to  avoid 
confounding  things  of  a  different  kind. 

Now  those  who  are  entrusted  with  the  power  of  ap- 
pointing magistrates,  are  bound,  from  motives  of  public 
good,  to  chuse  the  properest  persons,  and  this  is  what 
the  state  has  a  RIGHT  to  require  of  them.  They  are 
bound  therefore  to  repair  any  loss  which  the  state  may 
sustain  by  the  choice  of  improper  persons.  So  any  sub- 
ject who  is  not  disqualified,  though  he  has  no  peculiar 
right  to  an  office,  has  an  equal  right  with  others  to  en- 
deavour to  obtain  it.  In  the  exercise  of  which  right,  if, 
he  is  obstructed  by  violence  or  fraud,  he  may  recover 
damages,  not  to  the  full  value  of  the  office  which  he 
sought,  but  according  to  the  probable  loss  which  he  may 
reasonably  be  supposed  to  have  suffered.  Similar  to 
which  is  the  right  of  a  legatee,  when  a  testator  has  been 


THE   RIGHTS  OF   WAR  AND   PEACE  197 

prevented  by  fraud  or  violence  from  making  a  bequest. 
For  the  capability  of  receiving  a  legacy  is  a  kind  of 
right,  which  to  obstruct  a  testator  from  conferring,  is 
undoubtedly  an  injury. 

IV.  The  loss  or  diminution  of  any  one's  possessions  is 
not  confined  to  injuries  done  to   the   SUBSTANCE   alone  of 
the  property,  but  includes  every  thing  affecting  the  pro- 
duce of  it,  whether  it  has  been  gathered  or  not.     If  the 
owner  himself  had    reaped  it,    the  necessary  expence  of 
reaping,  or  of  improving  the  property  to  raise  a  produce, 
must  also  be  taken  into  the  account  of  his  loss,  and  form 
part  of  the  damages.     For  it  is  an  established  maxim  that 
no  one  ought  to  derive  benefit  from  the  loss  of  another. 

V.  Damages  are  to  be  computed  too,  not  according  to 
any  ACTUAL  gain,  but  according  to  the  REASONABLE  expec- 
tation of  it.     Which  in   the  case   of  a  growing  crop  may 
be  judged  of  by  the  general  abundance  or  scarcity  of  that 
particular  season. 

VI.  But    besides    the   person    immediately    doing    an 
injury,  others  may  be  bound  also  to  repair  the  losses  of 
the  suffering  party.     For  as    a   person   may  be  guilty  of 
offences   by  negligence    as    well    as  by    the    commission 
of  certain  acts,  so  they  may  be  done  also  by  accessories, 
as  well  as  principals.     Now  a  principal  in  any    crime  or 
offence  is  one,  that  urges  to   the  commission  of   it,  that 
gives   all   possible    consent,    that  aids,    abets,  or    in  any 
shape  is  a  partner  in  the  perpetration  of  it. 

VII.  An  accessory  is  one  who  gives  his  counsel,  appro- 
bation,   and   assent.     For   where    is   the   difference,    says 
Cicero,  in  his  second  Philippic,  between  advising  an  act, 
and  approving  of  it  ? 

VIII.  and  IX.  The  obligation  to  repair  the  losses  suffered 
by  negligence  may   be    considered   in    a   two-fold   light. 
Firstly,    when   any   person,    whose    peculiar    office   it   is, 
neglects  either  to  forbid  the  commission  of  an  injury,  or 
to    assist    the   injured   party.     And    secondly,    when  the 
person,  who  ought  to  do  it,  either  does  not  dissuade  from 
the  commission  of  an  offence,  or  passes    over  in  silence, 
what  he  is  bound  to  make  known.     In  these  cases,  when 
it  is  said  that  a  person  OUGHT  to  do,  or  to  forbear  doing 
certain   actions,    it   is   meant    that    he    is   bound  by  that 
right,  which   strict   justice    requires,  whether    that  duty 
arises  from  law,  or  from  the  capacity,  which   the  person 
bears.     For  though   it  may   be  wrong   to  omit  any  duty 
enjoined  by  the  law  of  charity,  there    can  be  no   redress 


198  HUGO   GROTIUS 

for    such    omission,    but  every   LEGAL    REMEDY    must  be 
founded  on  some  PECULIAR  RIGHT. 

X.  It  is  to  be  observed  also  that  all  the  parties  above- 
mentioned,  if  they  have  been  the  real  occasion  of  loss  to 
any  one,  or  have  abetted  the  person  doing  him  the  injury, 
are  so  far  implicated  in  the  guilt,  as  to  be  liable  to  full 
damages,  or,  at  least,  proportionably  to  the  part  they  have 
taken.  For  it  may  and  often  does  happen  that  a  crime 
would  have  been  committed  by  an  offender,  even  with- 
out the  aid  of  other  principals  or  accessories.  In  which 
case  he  alone  is  answerable.  Yet  neither  principals  nor 
accessories  will  be  allowed  to  plead  as  an  excuse,  that  if 
they  had  not  aided  or  abetted,  others  would  have  been 
found  to  assist  and  encourage  the  perpetrator  in  the  com- 
mission of  the  act.  Especially,  if  it  appears  that  without 
such  assistance  from  them  the  crime  would  never  have 
been  committed.  For  those  other  imaginary  abettors  would 
themselves  have  been  answerable,  if  they  had  given  their 
advice  or  aid. 

XL  In  the  scale  of  implication  the  first  degree  applies 
to  those,  who  by  their  authority,  or  other  means  have 
compelled  or  urged  any  one  to  the  commission  of  an 
offence.  On  failure  of  these  the  perpetrator  himself  has 
the  greatest  share  of  guilt,  and  next  to  him,  others  who 
have  been  concerned.  In  short,  all  individuals,  whose 
hands  have  been  engaged  in  the  perpetration,  are  guilty, 
though  they  have  not  been  the  sole  authors  of  the  act. 

XII.  Now  he  who  is  answerable  for  an  act,  is  answer- 
able for  all  the  injurious  consequences  attending  it.  Sen- 
eca in  one  of  his  controversies,  treating  upon  this  point, 
puts  the  case  of  a  plane-tree  set  on  fire,  by  which  a  house 
was  burnt,  and  he  subjoins  the  following  remark,  a  al- 
though the  mischief  went  further  than  was  intended,  yet 
the  person  doing  it  was  answerable  for  the  WHOLE,  as 
much,  as  if  he  had  done  it  by  design.  For  any  one  that 
puts  his  defence  upon  the  plea  of  UNINTENTIONAL  INJURY, 
ought  to  have  abstained  from  all  mischief  whatsoever.* 
When  Ariarathes,  king  of  Cappadocia  had  wantonly  ob- 
structed the  channel  of  the  river  Melas,  which  discharges 
itself  into  the  Euphrates,  the  swell  of  waters  bursting  the 
mounds,  the  Euphrates  rose  to  such  a  height,  as  to  occa- 
sion excessive  damage  to  the  Cappadocians,  the  Galatians, 
and  the  Phrygians.  Upon  which  the  decision  of  the  mat- 
ter being  left  to  the  Romans,  they  imposed  upon  him  a 
fine  of  three  hundred  talents. 


THE   RIGHTS   OF  WAR  AND   PEACE  199 

XIII.  XIV.  XV.  and  XVI.  But  to  proceed  with  other 
instances  of  injury,  which  render  the  parties  committing 
them  liable  to  repair  the  losses  occasioned  thereby.  The 
case  of  excusable  homicide  may  be  alleged  as  one,  wherein 
the  person,  who  has  committed  it,  is  bound  to  make 
every  reasonable  compensation  to  the  family,  dependents, 
and  connections  of  the  deceased  party,  in  proportion  to 
the  loss,  which  they  have  sustained  from  his  death.  As 
Michael  the  Ephesian  in  the  fifth  book  of  Aristotle's 
Ethics  has  observed,  that  the  compensation  made  to  the 
parents,  the  wife  or  children  of  the  deceased  is  nearly 
the  same  as  if  it  could  be  made  to  himself.  The  writer 
is  here  speaking  of  excusable  homicide,  that  is,  when 
the  person  by  whom  it  is  committed,  does  it  not  in  the 
immediate  discharge  of  some  legal  duty.  Wherefore  if 
any  one,  in  defending  himself,  has  killed  another  from 
whom  he  might  have  escaped,  though  he  may  have 
violated  the  law  of  charity,  yet  he  has  not  incurred  the 
penalty  of  a  capital  offence. 

Upon  the  same  principle  the  person,  who  has  maimed 
or  mutilated  another,  will  be  bound  to  make  him  a  com- 
pensation, proportionably  to  the  means  of  subsistence 
which  he  is  deprived  of  by  such  a  calamity. 

A  thief  or  a  robber  is  bound  to  restore  what  has  been 
taken,  and  to  return  it  with  all  the  improvements  it  may 
have  acquired,  or  to  make  reparation  to  the  owner,  in 
proportion  to  the  gain,  which  the  privation  has  prevented 
him  from  making,  or  to  the  actual  value  of  the  thing 
itself.  If  the  thing  has  been  irretrievably  consumed,  the 
estimation  of  damages  must  be  made,  according  to  a 
medium  between  the  highest  and  the  lowest  value. 

To  this  class  of  offences  and  due  reparation  may  be 
referred  all  frauds  upon  the  public  revenue,  all  unjust 
decisions,  or  all  false  evidence,  by  which  states  or  indi- 
viduals are  injured. 

XVII.  Contracts,  or  promises  obtained    by    fraud,    vio- 
lence or  undue  fear  entitle  the  injured  party  to  full  resti- 
tution.    For  perfect  freedom  from    fraud  or   compulsion, 
in    all    our    dealings,  is  a  RIGHT    which   we    derive   from 
natural  law  and  liberty. 

With  the  same  class  of  offenders  we  may  rank  all  men 
in  office,  who  are  unwilling  to  discharge  their  duty  with- 
out a  bribe. 

XVIII.  When  a  person  has  HIMSELF  been  the  occasion  of 
the  fraud  or  violence,  the  consequences  are  imputable  to 


200  HUGO   GROTIUS 

his  own  conduct.  For  where  a  voluntary  act  gives  rise 
to  INVOLUNTARY  consequences,  those  consequences,  con- 
sidered in  a  moral  light,  are  to  be  deemed  the  fruits 
growing  out  of  the  exercise  of  a  free  will. 

XIX.  But  to  connect  the  preceding  cases  and  arguments 
with  public  and  national  concerns,  it  is  necessary  to  ob- 
serve, that  it  is  a  maxim  introduced  and  established  by 
the  consent  of  all  nations  that  the  wars  which  are  declared 
and  conducted  by  the  authority  of  the  sovereign  power 
on  both  sides  are  alone   entitled  to   the  denomination  of 
just  wars:     And  the  enemy  has  no  right  to  demand  res- 
titution for  what  the  prosecution  of  such  wars  has  reduced 
him  to  abandon  through  fear.     It  is  upon   this  principle 
we  admit  the  distinction  which  Cicero  has  made  between 
an  enemy,  towards  whom  the  consent  and  law  of  nations 
oblige  us  to  observe  many  common  rights,  and   between 
robbers  and  pirates.     For  any  thing  given  up  to  pirates  or 
robbers,  through  fear,  is  no  lawful  prize:  but  it  may  be 
recovered,  unless  a  solemn  oath  of  renunciation  has  been 
taken.     This  is  not   the  case  with    the  captures   made  in 
just  war. 

The  justification  which  Polybius  makes  for  the  Cartha- 
ginians, in  the  second  Punic  war,  carries  with  it  an 
appearance  of  equity,  though  it  is  not  a  question  imme- 
diately founded  upon  the  law  of  nations.  They  alleged 
as  a  reason  for  their  making  that  war,  that,  when  they 
were  engaged  in  quelling  a  mutiny  of  their  own  merce- 
naries, the  Romans  had  declared  war,  seized  upon  Sar- 
dinia, and  levied  contributions  of  money. 

XX.  Sovereign   Princes  and   States  are   answerable  for 
their  neglect,  if  they  use  not  all  the  proper  means  within 
their  power  for  suppressing  piracy  and  robbery.     And  on 
this  account    the  Scyrians  were    formerly  condemned   by 
the  Amphictyonic  council. 

When  some  of  the  states  of  the  united  Provinces  had, 
on  a  particular  occasion,  granted  commissions  to  many 
privateers,  and  those  adventurers  plundered  friends  and 
enemies  alike,  and  became  general  pirates,  it  was  a 
subject  of  great  discussion,  whether  those  states  were 
justified  in  having  made  use  of  the  services  of  desperate 
and  abandoned  men,  without  exacting  sufficient  security 
for  their  good  conduct.  At  that  time,  it  was  maintained 
that  they  were  bound  to  nothing  more,  than  to  punish 
or  deliver  up  the  offenders,  if  they  could  be  found,  and 
to  see  justice  done  by  a  forfeiture  of  their  property. 


THE   RIGHTS   OF   WAR  AND   PEACE  201 

For  they  themselves  had  neither  authorised  those  UNJUST 
acts  of  plunder,  nor  shared  in  the  fruits  of  them.  They 
had  even  strictly  prohibited  the  privateers  from  molest- 
ing the  subjects  of  friendly  powers.  As  to  their  taking 
securities,  there  was  no  obligation  to  do  that:  for  they 
had  a  right  to  grant  a  GENERAL  commission  to  all  their 
subjects  to  seize  upon  the  enemy's  property:  a  thing, 
which  had  frequently  been  done.  Nor  could  that  par- 
ticular commission  be  considered  as  an  act  of  injustice 
against  either  allies  or  neutrals ;  since  even  without  such 
permission  individuals  might  have  fitted  and  sent  out 
armed  vessels.  The  states  could  not  foresee,  nor  conse- 
quently provide  against  the  misconduct  of  those  adven- 
turers, who  had  exceeded  their  commission ;  and  if  nations 
were  to  decline  using  the  assistance  of  wicked  men,  no 
army  could  ever  be  collected.  And  it  has  been  confirmed 
by  the  authority  both  of  France  and  England,  that  a 
sovereign  cannot  answer  for  every  injury  done  to  the 
subjects  of  a  friendly  power  'by  his  naval  or  military 
forces ;  especially  if  it  is  plain  that  they  acted  in  violation 
of  his  orders. 

But  in  what  cases  any  one  is  released  from  being  answer- 
able for  what  is  done  by  his  subordinate  agents,  is  a  point 
not  so  much  for  the  law  of  nations,  as  for  the  municipal 
law,  and  particularly  the  maritime  code  of  each  country 
to  decide.  In  a  case  similar  to  that  alluded  to,  a  decision 
of  the  supreme  court  of  judicature  was  made  against  the 
Pomeranians  two  centuries  at  least  before. 

XXI.  It  is  the   CIVIL   law  too,  which    makes   an   owner 
answerable  for  the  mischief  or  damage  done  by  his  slave, 
or  by  his  cattle.     For  in  the  eye  of  natural  justice  he  is 
not  to  blame.      So  neither  is  the   person,  whose  ship,  by 
running  foul  of  another,  has  damaged  it,  though  by  the 
laws  of  many  nations,  and  of  ours  among   the   rest,    the 
damages  are  usually  divided  between  both  parties,  owing 
to  the  difficulty  of  deciding,  who  was  in  fault. 

XXII.  Damages  are  allowed  too  for  any  injury  done  to 
our  honour  or  reputation,  by  assault,  slander,  or  various 
other  ways.     In  which,  as  well  as  in  theft  and  other  crimes 
the  nature  of  the  offence  is  to  be  estimated  by  its  conse- 
quences.    For  the  reparation  in  such  cases  answers  to  the 
penalty  imposed  for  crimes.     And  that  reparation  is  made 
some  times    by  acknowledging   the   injured  party's  inno- 
cence ;  and  some  times  by  a  compensation  in  money,  which 
is  a  standard  value  of  all  things. 


CHAPTER  XVIII. 

ON  THE  RIGHT  OF  EMBASSIES. 

Right  of  Embassies,  an  obligation  arising  out  of  the  law  of  nations — 
Where  it  obtains  —  Whether  Embassies  are  always  to  be  admitted  — 
Dismissal  or  punishment  of  ambassadors  engaging  in  plots  not  to  be 
considered  as  a  harsh  measure,  but  an  act  of  self-defence — A  power 
to  whom  no  ambassador  has  been  sent,  not  bound  to  respect  the 
rights  of  embassy — An  enemy  to  whom  an  ambassador  is  sent 
bound  to  respect  his  rights  —  The  law  of  retaliation  no  plea  for  ill 
treatment  of  an  ambassador  —  This  right  of  protection  extends  to 
an  ambassador's  suite,  if  he  thinks  proper  to  claim  it  —  To  his 
moveable  property  —  Examples  of  obligation  without  the  right  of 
compulsion  —  Importance  of  the  sacred  character  of  ambassadors. 

I.  HITHERTO  the  pursuit  of  our  inquiries  has  led  us  to 
examine  those    rights    to  which    we    are  entitled   by  the 
law  of  nature,    occasionally   touching-   upon   those  points 
where  its  authority  is  farther  confirmed  by  the  voluntary 
law  of  nations.     And  that  voluntary  law  as  it  is   called, 
gives  rise  to  certain  obligations,  which   now   remain  for 
our    discussion,    and    in    which    the    rights    of    embassa- 
dors  form  a  leading  feature.     Almost  every  page  of  his- 
tory   offers    some    remark    on    the    inviolable    rights    of 
ambassadors,  and  the  security  of  their  persons,  a  security 
sanctioned  by  every    clause    and   precept   of  human   and 
revealed  law.     Nor  is  it   surprising   that    the   persons   of 
those  should  be  deemed  inviolable,  who  form  the  princi- 
pal link  in   that   chain,    by   which    sovereigns    and  inde- 
pendent states  maintain  their  intercourse  with  each  other. 
To  offer  violence  to  them  is  not  only  an  act  of  INJUSTICE, 
but,    as    Philip   in   his   letter   to   the   Athenians   says,    is 
acknowledged  by  all  to  be  an  act  of  IMPIETY. 

II.  But  whatever  rights  the  law  of  nations  may  confer 
upon  ambassadors,   it  is  necessary  in   the   first  place   to 
observe,  that  none  are  entitled  to  them,  but  those,  who 
are   sent  by  the   sovereigns  of  independent  countries  to 
each  other.     For  the  privileges  of  provincial,  or  municipal 
deputies  sent  to  the   states   general   of  any  country  are 
regulated  by  the  particular  laws  of  that  country  and  not 
by  the  law  of  nations.* 

*  <(  The  deputies  sent  to  the  assembly  of  the  states  of  a  kingdom,  or 
a  commonwealth  are  not  public  ministers  like  ambassadors,  as  they  are 
(202) 


THE    RIGHTS  OF  WAR  AND   PEACE  203 

Thus  we  find,  in  the  first  book  of  Livy,  an  ambassador 
styling  himself  a  public  messenger  of  the  Roman  People ; 
and,  in  the  sixth  book  of  the  same  historian,  we  have  a 
declaration  of  the  senate,  confining  the  rights  of  embassies 
to  the  intercourse  between  foreign  powers,  and  excluding 
citizens  from  the  same  privileges  in  their  transactions 
with  each  other.  Upon  this  topic,  the  authority  of  Cicero 
may  be  cited,  who,  in  order  to  shew  the  impropriety  of 
sending  ambassadors  to  Antony,  observes,  that  they  are 
not  dealing  with  a  Hannibal  or  a  foreign  enemy,  but  with 
one  of  their  own  citizens. 

Now  Virgil  has  so  clearly  explained  WHO  are  to  be 
reckoned  FOREIGNERS,  that  we  need  not  have  recourse  to 
lawyers,  to  understand  what  is  so  well  expressed  by  the 
poet,  who  says,  <(I  look  upon  every  country  as  foreign, 
which  owns  not  the  sway  of  our  sceptre. B  Aen.  vii.  369. 

A  state  therefore  connected  with  another  though  by  an 
unequal  treaty,  if  it  retain  its  independence,  will  have  a 
right  of  sending  embassies.  The  Princes  of  Germany, 
who  were  in  some  respects  subject  to  the  Emperor,  as 
their  head,  being  Sovereign  Princes  possessed  the  right 
of  sending  ambassadors  to  foreign  states.  But  Kings  who 
have  been  entirely  subdued  in  just  war,  and  stripped  of 
their  dominions,  have,  with  all  their  other  sovereign 
rights,  lost  that  of  sending  ambassadors.  It  was  for  this 
reason,  that  Paulus  Aemilius  made  prisoners  of  the  mes- 
sengers sent  to  him  by  Perseus,  whom  he  had  con- 
quered. 

In  civil  wars  necessity  sometimes  gives  birth  to  new 
rights  in  violation  of  former  rules.  When  for  instance, 
a  kingdom  is  so  equally  divided  between  two  parties, 
that  it  is  a  matter  of  doubt  which  of  them  constitutes 
the  nation,  or  in  a  disputed  succession  between  two 
claimants  of  the  crown;  the  kingdom  may  be  considered 
as  forming  two  nations  at  the  same  time.  Tacitus,  con- 
sidering each  party  in  such  cases,  as  entitled  to  the . 
rights  of  the  law  of  nations,  condemns  the  Flavians 
for  having,  in  the  rage  of  civil  dissensions,  violated,  in 
the  persons  of  the  Vitellian  ambassadors,  those  privi- 
leges, which  are  respected  even  among  FOREIGN  nations. 

not  sent  to  foreign  powers;  but  they  are  public  persons,  and,  in  that 
respect,  are  possessed  of  every  ezemption  and  immunity,  that  are  neces- 
sary to  the  discharge  of  their  functions.* — Vatt.  b.  iv.  ch.  vii.  sect  109. 
Of  this  nature  are  the  privileges  enjoyed  by  the  representatives  of  the 
British  people,  and  denominated  the  PRIVILEGES  OF  PARLIAMENT. 


204  HUGO   GROTIUS 

Pirates  and  robbers,  as  they  form  no  civil  community, 
cannot  rest  any  claim  to  protection  and  support  upon 
the  law  of  nations.  Tiberius,  as  we  are  informed  by 
Tacitus,  when  Tacfarinas  sent  ambassadors  to  him, 
spurned  at  the  idea  of  treating  with  a  robber,  as  with  a 
lawful  enemy.  Yet  sometimes  a  pledge  of  public  faith, 
and  the  rights  of  embassy  are  allowed  to  men  of  that 
description,  which  was  done  by  Pompey  to  the  fugitives 
from  the  Pyrenean  forest. 

III.  There  are  two  points  upon  which  the  privileges 
granted  by  the  law  of  nations  to  ambassadors  turn.  In 
the  first  place,  they  have  a  right  to  be  admitted  into 
any  country,  and  secondly  to  be  protected  from  all  per- 
sonal violence.  Respecting  the  former  of  these  points, 
there  is  a  passage  in  the  eleventh  book  of  Livy,  where 
Hanno,  a  Carthaginian  senator  inveighs  against  Hanni- 
bal for  not  having  admitted  into  his  camp  ambassadors, 
who  came  from  the  allies,  and  on  their  behalf;  as  he  had 
thereby  overturned  the  law  of  nations. 

But  this  rule  by  no  means  compels  nations  to  give  an 
UNQUALIFIED  admission  to  all  ambassadors.  For  that 
is  what  the  law  of  nations  can  never  intend:  it  only 
prohibits  the  refusal  of  admission  without  sufficient 
grounds. 

There  are  various  motives  which  may  afford  a  suffi- 
cient plea  for  such  refusal.  There  may  be  an  objection 
to  the  power  who  offers  to  treat,  to  the  person  sent  upon 
the  embassy,  or  perhaps  to  the  object  of  his  mission. 
Thus  at  the  suggestion  of  Pericles,  Melesippus,  the  La- 
cedaemonian ambassador,  was  sent  out  of  the  territories 
of  Athens;  because  he  came  from  an  enemy,  who  had 
no  pacific  intentions.  The  senate  of  Rome  said,  that 
they  could  receive  no  embassy  from  Carthage,  as  long 
as  the  Carthaginian  army  remained  in  Italy.  The 
Achaeans  refused  to  admit  the  ambassadors  of  Perseus, 
who  were  secretly  MEDITATING  war  against  the  Romans. 
Upon  the  same  grounds  Justinian  rejected  an  embassy 
from  Totilas,  and  the  same  was  done  by  the  Goths  at 
Urbino  to  messengers  from  Belisarius.  Polybius  relates 
in  the  third  book  of  his  history,  that  every  power  drove 
away  the  ambassadors  of  the  Cynethensians,  as  they 
were  so  infamous  a  people. 

We  have  an  instance  of  the  second  kind,  where  the 
objection  is  made  to  the  PERSON  sent  on  an  embassy,  in 
the  case  of  Theodore,  who  was  called  the  atheist,  and 


THE   RIGHTS   OF   WAR  AND   PEACE  205 

whom  Lysimachus  refused  to  receive  in  the  character  of 
an  ambassador  sent  from  Ptolemy,  and  the  same  thing 
has  frequently  happened  to  others,  against  whom  peculiar 
motives  of  aversion  have  existed. 

In  the  third  place,  there  may  be  sufficient  grounds  for 
refusing  to  admit  an  ambassador,  if  the  object  of  his 
mission  be  of  a  suspicious  kind,  as  was  the  case  with 
that  of  Rhabshakeh  the  Assyrian,  whom  Hezekiah  had 
reason  to  suspect  of  coming  with  a  design  to  excite  his 
people  to  rebellion.  Or  the  refusal  may  be  justified, 
where  it  is  not  consistent  with  the  dignity  or  circum- 
stances of  one  power  to  enter  into  any  treaty,  or  inter- 
course with  another.  For  this  reason  the  Romans  sent  a 
declaration  to  the  Aetolians,  that  they  should  send  no 
embassy,  but  with  the  permission  of  their  general,  and 
Perseus  was  not  allowed  to  send  one  to  Rome,  but  to 
Licinius.  Jugurtha's  ambassadors  too,  as  Sallust  informs 
us,  were  ordered  to  leave  Italy  within  the  space  of  ten 
days,  unless  they  came  with  offers  from  that  prince  to 
surrender  himself,  and  his  kingdom. 

There  may  often  be  the  best  reasons  for  a  sovereign's 
refusing  to  allow  of  a  RESIDENT  minister  at  his  court;  a 
practice,  so  general  in  the  present  day,  but  totally  un- 
known to  the  ages  of  antiquity. 

IV.  As  to  the  personal  exemption  of  ambassadors  from 
arrest,  constraint,  or  violence  of  any  kind,  it  is  a  subject 
of  some  difficulty  to  determine,  owing  to  the  varieties  of 
opinion  entertained  by  the  most  celebrated  writers  on  the 
question.  In  the  consideration  of  this  matter,  our  atten- 
tion is  directed  in  the  first  place  to  the  personal  priv- 
ileges and  exemptions  of  ambassadors  themselves,  and 
next  to  those  of  their  attendants,  and  their  goods.  With 
respect  to  their  persons,  some  writers  are  of  opinion, 
that  it  is  ONLY  from  UNJUST  VIOLENCE,  and  ILLEGAL  CON- 
STRAINT, that  the  law  of  nations  protects  ambassadors. 
For  they  imagine  that  their  privileges  are  to  be  explained 
according  to  the  common  principles  of  the  law  of  nature. 
Others  again  suppose  that  ambassadors  are  not  amenable 
to  punishment  for  ALL  offences,  but  only  for  such  as 
amount  to  a  transgression  of  the  law  of  NATIONS,  the 
principles  of  which  are  of  such  general  extent,  as  to  in- 
clude the  law  of  nature:  consequently  there  can  be  no 
offences  for  which  an  ambassador  is  not  punishable,  except 
for  those  actions  that  are  made  such  by  the  positive  rules 

Of    MUNICIPAL   Or   CIVIL    LAW. 


206  HUGO   GROTIUS 

Others  again  consider  these  public  representatives  of 
states  and  crowned  heads,  as  only  liable  to  punishment 
for  offences  affecting  the  dignity  or  governments  of  the 
sovereigns  to  whom  they  are  sent.  While,  on  the  other 
hand,  there  are  some  writers  who  maintain  that  for  any 
state  to  punish  an  ambassador  for  ANY  CRIME  WHATEVER 
is  highly  dangerous  to  the  independence  of  foreign  pow- 
ers ;  but  that  all  offenders  of  that  description  ought  to  be 
left  to  the  laws  of  their  respective  countries,  to  be  pun- 
ished or  not,  according  to  their  deserts,  upon  due  com- 
plaint being  made  to  the  sovereigns  by  whom  they  were 
sent 

Some  few  writers,  indeed,  in  laying  down  the  rule  to 
be  observed  in  such  cases,  have  decided  that  an  appeal 
should  be  made  to  other  independent  and  disinterested 
powers,  which  may  be  considered  rather  as  a  matter  of 
DISCRETION,  than  of  ABSOLUTE  RIGHT.  But  the  advocates 
of  all  these  various  systems  have  come  to  no  definite  con- 
clusion in  support  of  their  favourite  opinions.  For  this 
is  a  right  which  cannot,  like  the  law  of  nature,  be  estab- 
lished upon  unchangeable  rules,  but  derives  all  its  effi- 
cacy from  the  will  of  nations.  Nations  if  they  had 
thought  proper,  certainly  might  have  laid  down  ABSOLUTE 
rules  of  security  for  ambassadors,  or  coupled  them  with 
certain  exceptions.  The  argument  is  supported  on  one 
side  by  the  urgent  necessity  of  heinous  crimes  being  pun- 
ished, and  on  the  other,  the  utmost  latitude  of  exemption 
is  favoured  on  account  of  the  utility  of  embassies,  the 
facility  of  sending  which  ought  to  be  encouraged  by  every 
possible  privilege,  and  security.  To  settle  the  point  there- 
fore, we  must  consider  how  far  nations  have  agreed 
among  themselves  upon  these  principles;  the  proofs  of 
which  can  only  be  found  in  the  evidence  of  history. 

Many  instances  may  be  produced  in  favour  of  both 
opinions.  And  in  cases  like  this,  the  opinions  of  those 
celebrated  for  their  judgment  and  knowledge  will  be  of 
no  small  weight,  but  in  some  cases  we  must  rest  upon  con- 
jectures On  this  subject  the  two  eminent  historians,  Livy 
and  Sallust,  may  be  quoted  as  authorities,  the  former  of 
whom,  in  mentioning  the  ambassadors  of  Tarquin,  who 
had  been  guilty  of  fomenting  treasonable  conspiracies  at 
Rome,  says,  "that  although  they  deserved  to  be  treated 
as  enemies  tor  their  guilty  conduct,  yet  the  privilege, 
which  they  derived  from  the  law  of  nations,  prevailed 
over  every  other  consideration.8  Here  we  see  that  the 


THE   RIGHTS   OF  WAR  AND   PEACE  207 

rights  of  ambassadors  could  not  be  annulled  even  by  the 
most  criminal  acts  of  hostility.  But  the  observation  made 
by  Sallust,  relates  rather  to  those  who  come  in  the  train 
of  an  embassy  than  to  ambassadors  themselves.  The  law 
of  nations  surely  then  will  not  deny  the  same  privilege 
to  a  principal,  which  it  evidently  allows  to  those  who 
form  but  a  subordinate  part  in  the  public  mission.  The 
historian  says,  that  <(  Bomilcar  was  arraigned  and  tried 
rather  upon  principles  of  equity  and  natural  justice,  than 
in  conformity  to  the  law  of  nations,  as  he  belonged  to  the 
train  of  Jugurtha;  who  had  come  to  Rome  under  the 
pledge  of  public  faith." 

Equity  and  natural  justice  require  punishment  to  be 
inflicted  on  ALL  offenders,  whereas  the  law  of  nations 
makes  an  exception  in  favour  of  ambassadors,  and  those 
who  have  the  public  faith  for  their  protection.  Where- 
fore to  try  or  punish  ambassadors,  is  contrary  to  the  law 
of  nations,  which  prohibits  many  things,  that  are  per- 
mitted by  the  law  of  nature. 

The  law  of  nations,  thus  deviating  from  the  law  of  na- 
ture, gives  rise  to  those  interpretations  and  conjectures, 
which  reconcile  with  the  principles  of  justice  a  greater 
extension  of  privileges  than  the  law  of  nature  strictly 
allows.  For  if  ambassadors  were  protected  against  noth- 
ing more  than  violence  and  illegal  constraint,  their  privi- 
leges would  confer  no  extraordinary  advantage.  Besides, 
the  security  of  ambassadors  is  a  matter  of  much  greater 
moment  to  the  public  welfare  than  the  punishment  of 
offences.  Because  reparation  for  the  misconduct  of  an 
ambassador  may  be  looked  for  from  the  sovereign,  by 
whom  he  is  sent,  unless  that  sovereign  chuses  to  expose 
himself  to  hostilities  by  approving  of  his  crimes.  An  ob- 
jection to  such  privileges  is  made  by  some,  who  assert, 
that  it  is  better  for  one  person  to  be  punished  than  for 
whole  nations  to  be  involved  in  war.  But  if  a  sovereign 
has  SECRETLY  given  his  sanction  to  the  misconduct  of  his 
ambassador,  his  APPARENT  intentions  to  punish  that  am- 
bassador will  not  deprive  the  injured  power  of  the  right 
to  seek  redress  by  commencing  hostilities. 

On  the  other  hand,  the  right  of  ambassadors  would 
rest  upon  a  very  slippery  foundation  if  they  were  ac- 
countable, for  their  actions,  to  any  one  but  their  own 
sovereigns.  For  as  the  interests  of  powers  sending,  and 
of  those  receiving  ambassadors,  are  in  general  different, 
and  some  times  even  opposite,  if  a  public  minister  were 


2o8  HUGO  GROTIUS 

obliged  to  consult  the  inclinations  of  both,  there  would 
be  no  part  of  his  conduct,  to  which  they  might  not  im- 
pute some  degree  of  blame.  Besides  although  some  points 
are  so  clear,  as  to  admit  of  no  doubt,  yet  universal  dan- 
ger is  sufficient  to  establish  the  equity  and  utility  of  a 
general  law.  For  this  reason  it  is  natural  to  suppose, 
that  nations  have  agreed,  in  the  case  of  ambassadors,  to 
dispense  with  that  obedience,  which  every  one,  by  gen- 
eral custom,  owes  to  the  laws  of  that  foreign  country,  in 
which,  at  any  time,  he  resides.  The  character,  which 
they  sustain,  is  not  that  of  ordinary  individuals,  but  they 
represent  the  Majesty  of  the  Sovereigns,  by  whom  they 
are  sent,  whose  power  is  limited  to  no  local  jurisdiction. 
As  Cicerd,  in  his  eighth  Philippic,  speaking  of  a  certain 
ambassador,  says,  whe  carried  with  him  the  Majesty  of 
the  Senate,  and  the  authority  of  the  State. }>  From  hence 
it  is  concluded,  that  an  ambassador  is  not  bound  by  the 
laws  of  the  country,  where  he  resides.  If  he  commit  an 
offence  of  a  trivial  nature,  it  may  either  be  suffered  to 
pass  unnoticed,  or  he  may  be  ordered  to  leave  the  coun- 
try. 

Polybius  relates  an  instance  of  an  ambassador,  who  was 
ordered  to  leave  Rome,  for  having  assisted  some  hostages 
in  making  their  escape.  Hence  it  is  obvious  why  the 
Romans  inflicted  corporeal  punishment  upon  an  ambassa- 
dor of  Tarentum,  because  the  Tarentines  were  at  that 
time  their  own  subjects,  by  right  of  conquest. 

If  a  crime  is  of  a  notorious  nature,  affecting  the  gov- 
ernment, an  ambassador  may  be  sent  home,  and  his  sov- 
ereign required  to  punish,  or  deliver  him  up,  as  we  read 
of  the  Gauls  having  done  to  the  Fabians.  But,  as  we 
have  before  occasionally  observed,  all  human  laws  are 
framed  upon  such  principles,  as,  in  cases  of  extreme 
necessity,  to  admit  of  equitable  relaxations,  among  which 
the  privileges  of  ambassadors  may  be  reckoned.  But 
these  extreme  cases  of  necessity  may,  according  to  the  law 
of  nations,  as  will  be  seen  hereafter,  in  discussing  the 
effects  of  just  and  solemn  war,  prevent  punishment  in 
CERTAIN  cases,  though  not  in  ALL.  For  it  is  not  the  act 
of  punishment  itself,  which  is  objected  to,  either  in  re- 
spect to  time,  or  manner,  but  the  exemption  is  created  to 
prevent  the  greater  public  evil,  which  might  arise  from 
the  punishment  of  the  offender.  To  obviate  therefore 
any  imminent  danger,  if  no  other  proper  method  can  be 
devised,  ambassadors  may  be  detained  and  interrogated. 


THE   RIGHTS  OF  WAR  AND   PEACE  209 

Thus  the  Roman  Consuls  seized  the  ambassadors  of  Tar- 
quin,  previously  taking  care  to  secure  their  papers,  to 
prevent  the  evidence,  which  they  might  afford,  from  being 
destroyed.  But  if  an  ambassador  excites  and  heads  any 
violent  insurrection,  he  may  be  killed,  not  by  way  of  pun- 
ishment, but  upon  the  natural  principle  of  self-defence. 
The  Gauls  therefore  might  have  put  to  death  the  Fabii, 
whom  Livy  calls  violators  of  the  law  of  nature. 

V.  Mention  has  before  been  frequently  made  of  the 
exemptions,  by  which  ambassadors  are  protected  from  all 
personal  constraint  and  violence,  and  it  is  understood  that 
all  powers  are  bound  by  a  tacit  agreement,  as  it  were, 
from  the  time  of  admitting  an  ambassador,  to  respect 
these  exemptions.  It  MAY  and  indeed  sometimes  DOES 
happen,  that  one  power  gives  notice  to  another  that  no 
ambassador  will  be  received,  and  if  one  is  sent,  that  he 
will  be  treated  as  an  enemy.  A  declaration  to  this  effect 
was  made  by  the  Romans  to  the  Aetolians,  and,  on  an- 
other occasion,  the  Vejentian  ambassadors  were  ordered 
to  leave  Rome,  with  a  menace,  if  they  refused  to  comply, 
of  being  treated  in  the  same  manner  as  the  Roman  am- 
bassadors had  been  treated  by  their  king  Tolumnius,  who 
had  put  them  to  death.  The  Samnites  too  forbade  the 
Romans  to  go  to  any  council  in  Samnium,  under  pain  of 
forfeiting  their  lives,  or,  at  least,  their  personal  safety. 

The  above  law  does  not  bind  a  power,  through  whose 
territories  ambassadors  pass  without  leave.  For,  if  they 
are  going  to  an  enemy  of  that  power,  or  returning  from 
him,  or  are  engaged  in  any  hostile  design,  they  may  law- 
fully be  treated  as  enemies ;  which  was  done  by  the  Athe- 
nians in  the  case  of  the  messengers  passing  between  the 
Persians  and  Spartans,  and  by  the  Illyrians  in  that 
of  those,  who  carried  on  the  intercourse  between  the 
Essians  and  Romans.  Xenophon  maintains  that  in 
certain  cases  they  may  be  made  prisoners,  as  Alexander 
made  those,  who  were  sent  from  Thebes  and  Lacedae- 
mon  to  Darius,  and  the  Romans  those,  whom  Philip  sent 
to  Hannibal,  and  Latius  those  of  the  Volscians.  For  to 
treat  ambassadors  with  any  degree  of  rigour,  EXCEPT 
UPON  THOSE  SUFFICIENT  GROUNDS,  would  be  deemed  not 
only  a  breach  of  the  law  of  nations,  but  a  personal 
offence  against  the  sovereigns,  to  whom  they  are  going, 
or  by  whom  they  are  sent.  Justin  informs  us,  that  Philip 
II.  king  of  Macedon,  sent  an  ambassador  to  Hannibal 
with  credentials,  empowering  him  to  make  an  alliance, 
14 


210  HUGO    GROTIUS 

and  that^  when  this  ambassador  was  seized  and  carried 
before  the  Senate  of  Rome,  they  dismissed  him  without 
farther  molestation,  not  out  of  respect  to  the  king,  but 
to  prevent  a  doubtful  enemy  from  becoming  a  decided 
one. 

VI.  But  if  an  embassy,  admitted   by  an   ENEMY   is  en- 
titled  to  all   the  privileges  of  the  law  of  nations,  much 
more  so  is  one,  admitted  by  a  power  UNFRIENDLY,  but  not 
engaged   in    ACTUAL  HOSTILITIES.     Diodorus  Siculus  says, 
that  a  messenger  with  a  flag  of  truce  claims  all  the  secur- 
ity of   peace,  even  in  the   midst  of    war.     The    Lacedae- 
monians, who  had  murdered  the  heralds  of  the  Persians, 
were  said  by  that  act  to  have  confounded  every  distinc- 
tion between  right  and  wrong,  as  it  is  acknowledged  by 
all  nations.     For  legal  writers  lay  it  down  as  a  rule,  that 
to  offer  personal  violence  to  ambassadors,  whose  characters 
are  deemed   sacred,  is  a  defiance  of  the   law  of  nations, 
and  Tacitus  calls   the  privileges  we   are  now  discussing, 
the  rights  of  embassy,  sanctified  by  the  law  of  nations. 

Cicero,  in  his  first  speech  against  Verres,  asks,  if  am- 
bassadors ought  not  to  be  safe  in  the  midst  of  an 
enemy's  country,  or  even  in  his  camp  ?  Innumerable 
other  instances  of  this  kind  might  be  produced  from  the 
highest  authorities  both  ancient  and  modern.  And  it  is 
with  reason  that  such  privileges  are  revered,  for  in  the 
midst  of  war  many  circumstances  arise,  which  cannot  be 
decided  but  through  ambassadors,  and  it  is  the  only 
channel  through  which  proposals  of  peace  can  be  made, 
and  confirmed. 

VII.  It  is  frequently  made  a  subject  of  inquiry,  whether 
the  ambassador   of   a   sovereign,  who   has   exercised   any 
act  of    cruelty   or    rigour,  will  be   subject   to  the  law  of 
retaliation.     History  furnishes  many  instances,  in  which 
punishment  has  been   inflicted   in   such   a  manner.     But 
history  is  sometimes  nothing  more   than  a  catalogue   of 
actions   marked   with   injustice,    and   ungovernable   fury. 
Whereas  the  law  of  nations,  by  its  privileges,  designs  to 
secure  the  dignity  not  only  of  sovereigns  themselves,  but 
also  that  of  the  ambassadors  whom  they  employ.    Conse- 
quently there  is  a  tacit  agreement  understood  to  be  made 
with  the  latter,  that  HE   shall  be   exempt,  not  only  from 
any  ill  treatment,  that  may  affect  the  principal,  but  from 
such  likewise,  as   may   affect  himself.     So  that  it  was   a 
magnanimous  answer,  conformable  to  the  law  of  nations, 
which  Scipio  made,  when  the  Roman  ambassadors  had  been 


THE   RIGHTS   OF   WAR  AND   PEACE  211 

ill-treated  by  the  Carthaginians,  and  the  Carthaginian 
ambassadors  were  brought  before  him,  upon  his  being 
asked,  in  what  manner  they  should  be  treated,  he  replied, 
not  as  the  Roman  ambassadors  had  been  by  the  Cartha- 
ginians. Livy  adds,  that  he  said,  he  would  do  nothing 
unbecoming  the  character  and  laws  of  the  Roman  people. 
Valerius  Maximus  assigns  the  same  language  to  the  Con- 
suls, on  an  occasion  similar,  but  prior  to  this.  In  ad- 
dressing Hanno,  they  said,  <(the  pledge  of  faith,  which 
our  state  has  given,  releases  you  from  any  such  fear.* 
For  even  at  that  time,  Cornelius  Asina,  in  violation  of 
his  public  character,  had  been  arrested  and  thrown  into 
prison  by  the  Carthaginians, 

VIII.  The  train  too  of  an  ambassador,  and  all  the  plate 
belonging  to  him  are  entitled  to  a  peculiar  kind  of  pro- 
tection.    Which  gave   rise  to  the  passage  in  the  ancient 
song  of   the    Heralds,   "  O  Sovereign,  do  you  make  me  a 
royal  messenger    from  the    Roman   citizens  ?  and  do  you 
confer  the  same  privileges  on  my  train  and  every  thing, 
which  belongs  to  me  ?  "     And  by  the  Julian  law,  an  injury 
affecting   not   only   ambassadors,  but   even   their   attend- 
ants, is  pronounced  to  be  a  violation  of  public  right. 

But  these  privileges  of  attendants  are  only  granted  so 
far  as  an  ambassador  himself  may  think  proper:  so  that 
if  any  of  them  has  committed  an  offence,  he  must  be 
required  to  deliver  up  the  offender  to  punishment.  He 
must  be  REQUIRED  to  give  him  up.  Because  no  violence, 
in  taking  an  offender  of  that  description  must  be  used. 
When  the  Achaeans  had  arrested  some  Lacedaemonians^ 
who  were  along  with  the  Roman  ambassadors,  the  Romans 
raised  a  great  outcry  against  the  act,  as  a  violation  of 
the  law  of  nations.  Sallust's  opinion  in  the  case  of 
Bomilcar  has  already  been  referred  to. 

But  should  the  ambassador  refuse  to  give  up  such 
offender,  redress  must  be  sought  in  the  same  manner,  as 
would  be  done  with  respect  to  the  ambassador  himself. 
As  to  his  authority  over  his  household,  and  the  asylum, 
which  he  may  afford  in  his  house  to  fugitives,  these  de- 
pend upon  the  agreement  made  with  the  power,  to  whom 
he  is  sent,  and  do  not  come  within  the  decision  of  the 
law  of  nations. 

IX.  Neither  can  the  moveable  property  of  an  ambassa- 
dor,   nor  any  thing,   which   is   reckoned   a   personal   ap- 
pendage, be   seized   for  the   discharge   of  a  debt,  either 
by  process  of  law,  or  even   by  royal   authority.     For,  to 


212  HUGO   GROTIUS 

give  him  full  security,  not  only  his  person  but  every 
thing  belonging  to  him  must  be  protected  from  all  com- 
pulsion. If  an  ambassador  then  has  contracted  a  debt, 
and,  as  is  usual,  has  no  possession  in  the  country,  where 
he  resides:  first  of  all,  courteous  application  must  be 
made  to  himself,  and,  in  case  of  his  refusal,  to  his  sov- 
ereign. But  if  both  these  methods  of  redress  fail,  re- 
course must  be  had  to  those  means  of  recovery,  which 
are  used  against  debtors  residing  out  of  the  jurisdiction 
of  the  country. 

X.  Nor  is   there,  as   some   think,  any  reason  to   fear, 
that  if  such  extensive  privileges  were  established,  no  one 
would  be  found  willing  to  enter  into  any  contract  with 
an  ambassador,  or  to  furnish  him  with  necessary  articles. 
For  the  same  rule -will  hold  good  in  the  case  of  ambas- 
sadors,  as   in   that  of    Kings.      As   sovereigns,    who   for 
the  best  of  reasons,  are  placed  above  the  reach  of  legal 
compulsion,  find  no  difficulty  in  obtaining  credit. 

XI.  The  importance  of  such  exemptions  may  be  easily 
inferred  from  the   innumerable   instances,  in  which  both 
sacred  and  profane    history  abound,  of  wars   undertaken 
on  account  of  the  ill-treatment  of  ambassadors.    The  war 
which  David  made   against   the  Ammonites,  on   that  ac- 
count, affords  us  a  memorable  instance   from   holy  writ; 
and    as    a    profane    writer,    Cicero    may    be    cited,    who 
deemed  it  the  most  justifiable  ground  of  the  Mithridatic 
war. 


PEACE 

By  Gan  Melchers  —  From  a  panel  painting  in  Library  of 
Congress. 


CHAPTER   XIX. 

ON   THE   RIGHT   OF   BURIAL. 

Right  of  burying  the  dead  founded  on  the  law  of  nations  —  Origin  of 
this  right  —  Due  to  enemies  — Whether  due  to  those  guilty  of  atro- 
cious crimes — Whether  to  those,  who  have  committed  suicide — 
Other  rights  also  authorised  by  the  law  of  nations. 

I.  THE  right  of  burying  the  dead  is  one  of  those 
originating  in  the  voluntary  law  of  nations.  Next  to 
the  right  of  ambassadors  Dion  Chrysostom  places  that  of 
burying  the  dead,  and  calls  it  a  moral  act,  sanctioned 
by  the  unwritten  law  of  nature :  And  Seneca,  the  elder, 
ranks  the  law,  which  commands  us  to  commit  the  bodies 
of  the  dead  to  their  parent  earth,  among  the  UNWRITTEN 
precepts,  but  says,  they  have  a  stronger  sanction  than 
the  RECORDED  laws  of  all  ages  can  give.  For,  in  the 
language  of  the  Jewish  writers,  Philo  and  Josephus,  they 
are  marked  with  the  seal  of  nature,  and  under  the  name 
of  nature,  we  comprehend  the  customs,  that  are  common 
to  all  mankind,  and  agreeable  to  natural  reason. 

We  find  it  some  where  said  by  Aelian,  that  our  com- 
mon nature  calls  upon  us  to  cover  the  dead,  and  some 
writer,  in  another  place,  observes  that  all  men  are 
reduced  to  an  equality  by  returning  to  the  common  dust 
of  the  earth.  Tacitus  informs  us,  in  b.  vi.  of  his  Annals, 
that,  when  Tiberius  made  a  general  massacre  of  all,  who 
had  been  connected  with  Sejanus,  and  that  he  forbad 
them  the  rites  of  burial,  every  one  was  struck  with  horror 
to  see  the  last  offices  of  humanity  refused;  offices,  which 
Lysias  the  orator  calls  the  common  hopes  of  our  nature. 

As  the  ancients  measured  the  moral  character  of  every 
people  by  their  observance  or  neglect  of  these  rights,  in 
order  to  give  them  a  greater  appearance  of  sanctity,  they 
ascribed  their  origin  to  the  authority  and  institutions  of 
their  Gods;  so  that  in  every  part  of  their  writings  we 
meet  with  frequent  mention  of  the  rights  of  ambassadors, 
and  the  rights  of  burial,  as  founded  upon  divine  appoint- 
ment. 

In  the  Tragedy  of  the  Suppliants,  Euripides  calls  it  the 
law  of  the  Gods,  and  in  the  Antigone  of  Sophocles,  the 
heroine  makes  the  following  reply  to  Creon,  who  had  for- 

(213) 


2H  HUGO   GROTIUS 

bidden  any  one  under  pain  of  death,  to  give  the  rites  of 
burial  to  Polynices,  (<  A  prohibition,  like  this,  was  not 
revealed  by  the  supreme  will,  nor  by  that  heaven-born 
justice,  which  has  established  those  laws  of  respect  for  the 
dead:  nor  did  I  think  that  you  could  command  mortals 
to  transgress  the  unwritten  and  inviolable  laws  of  God. 
They  were  not  established  to-day,  nor  yesterday,  but  from 
all  eternity  and  will  for  ever  be  in  force.  Their  sources 
are  unknown.  Am  I  through  fear  of  a  mortal,  and  by 
obeying  his  unjust  commands,  to  incur  the  wrath  of 
Heaven  ? w 

The  authority  of  Isocrates,  and  of  Herodotus,  and  that 
of  Xenophon,  in  the  sixth  book  of  his  Grecian  History, 
may  be  appealed  to  in  support  of  the  honours,  that  have 
at  all  times  been  paid  to  the  dead.  In  short,  these  offices 
of  humanity  are  recommended  by  the  conspiring  testi- 
mony of  the  orators,  historians,  poets,  philosophers  and 
divines  of  all  ages,  who  have  dignified  them  with  the 
names  of  the  most  splendid  virtues. 

II.  There  seems  to  be  no  general  agreement  of  opinion 
upon  the  origin  of  funeral  rites,  and  the  variety  of  ways, 
in  which  they  were  performed.  The  Egyptians  EMBALMED, 
and  most  of  the  Greeks  BURNED  the  bodies  of  the  dead 
before  they  committed  them  to  the  grave.  Cicero,  in  the 
22d  chapter  of  his  second  Book  on  Laws,  speaks  of  the 
interment  alone,  which  is  now  in  use,  as  the  most  ancient 
method,  and  that,  which  is  most  congenial  to  nature,  and 
in  this  he  is  followed  by  Pliny. 

Some  think  that  men  paid  it  as  a  VOLUNTARY  debt  of 
nature,  which  they  knew  that,  AT  ANY  RATE,  they  would 
be  obliged  to  discharge.  For  the  divine  sentence,  that 
the  body  should  return  to  the  dust,  from  which  it  was 
taken,  was  not  passed  upon  Adam  only,  but,  as  we  find 
it  acknowledged  by  the  writings  of  Greece  and  Rome, 
extended  to  the  whole  human  race,  Cicero,  from  the 
Hypsipyle  of  Euripides,  says,  <(  Earth  must  be  returned 
to  earth, w  and  in  the  twelfth  chapter  of  Solomon's  Eccle- 
siastes,  there  is  a  passage  to  the  same  purport,  that  <(  the 
dust  shall  return  to  the  earth  as  it  was,  but  the  spirit  to 
God,  who  gave  it.*  Euripides  has  enlarged  on  this  sub- 
ject in  the  character  of  Theseus  in  his  Suppliants,  (<  Suf- 
fer the  dead  to  be  laid  in  the  lap  of  the  earth ;  for  every 
thing  returns  to  its  original  state,  the  spirit  to  heaven, 
and  the  body  to  the  earth :  Neither  of  them  is  given  in 
plenary  possession,  but  only  for  a  short  use:  The  earth 


THE   RIGHTS   OF  WAR  AND   PEACE  215 

soon  demands  back  the  bodies,  to  which  she  had  given 
birth  and  nourishment.*  In  the  same  manner  Lucretius 
calls  the  earth  (<  a  prolific  parent  and  a  common  grave.  w 
Pliny  also  describes  the  earth,  as  receiving  us  at  our  birth, 
cherishing  our  growth,  supporting  us  to  the  very  last,  and, 
when  all  the  other  parts  of  nature  have  forsaken  us, 
taking  us  to  her  maternal  bosom,  and  covering  us  with  a 
mantle. 

There  are  some,  who  think  that  the  custom  of  burial 
was  bequeathed  to  us  by  our  first  parents  as  a  testament- 
ary hope  of  a  resurrection.  For  we  are  instructed  by 
Democritus  to  believe,  that  our  bodies  are  preserved  in 
the  earth  under  the  promise  of  a  restoration  to  life. 
And  Christians  in  particular  have  frequently  ascribed  the 
custom  of  decent  burial  to  the  same  hope.  Prudentius  a 
Christian  poet  says,  "What  can  be  the  meaning  of  hal- 
lowed rocks,  or  splendid  monuments,  except  that  they 
are  the  depositories  of  bodies,  consigned  not  to  death, 
but  to  a  temporary  sleep  ? w 

But  the  most  obvious  explanation  is  to  be  found  in  the 
dignity  of  man,  who  surpassing  other  creatures,  it  would 
be  a  shame,  if  his  body  were  left  to  be  devoured  by 
beasts  of  prey.  It  is  an  act  of  compassion  then,  said 
Quintilian,  to  preserve  the  bodies  of  men  from  ravages 
of  birds  and  beasts.  For  to  be  tore  by  wild  beasts,  as 
Cicero  observes  in  his  first  book  ON  INVENTION,  is  to  be 
robbed  of  those  honours,  in  death,  which  are  due  to  our 
common  nature.  And  the  Roman  Poet,  makes  a  lament- 
ation over  one  of  his  heroes,  that  he  had  no  pious  mother 
to  lay  his  body  in  the  grave,  but  he  would  be  left  a  prey  to 
birds,  or  thrown  into  the  river  as  food  for  fishes.  Aen. 
*•  557-56o. 

But  to  speak  from  still  higher  authority,  God,  by  the 
mouth  of  his  prophets,  threatens  the  wicked  that  they 
shall  have  burial  like  that  of  the  brutes,  and  that  the 
dogs  shall  lick  their  blood.  Such  a  menace  denounced 
against  the  wicked,  as  a  punishment,  shews  that  it  is  an 
indignity  done  to  OUT  nature,  when,  in  the  words  of 
Lactantius,  the  image  of  God  is  cast  out,  to  the  insults 
of  beasts  of  prey.  But  in  such  indignity  if  there  was 
even  nothing  repugnant  to  the  feelings  of  men,  still  the 
nakedness  and  infirmities  of  our  perishable  nature  should 
not  be  exposed  to  the  eye  of  day. 

Consequently  the  rights  of  burial,  the  discharge  of 
which  forms  one  of  the  offices  of  humanity,  cannot  be 


216  HUGO   GROTIUS 

denied  even  to  enemies,  whom  a  state  of  warfare  has 
not  deprived  of  the  rights  and  nature  of  men.  For,  as 
Virgil  observes,  all  animosity  against  the  vanquished 
and  the  dead  must  cease.  Aen.  xi.  104.  Because  they 
have  suffered  the  last  of  evils  that  can  be  inflicted.  <(  We 
have  been  at  war,  I  grant,  says  Statins,  but  our  hatred 
has  fallen,  and  all  our  enmity  is  buried  in  the  grave.* 
And  Optatus  Milevitanus  assigns  the  same  reason  for 
reconciliation.  <(  If  there  have  been  struggles  among  the 
living,  your  hatred  surely  must  be  satisfied  with  the  death 
of  an  adversary.  For  the  tongue  of  strife  is  now 
silenced. }> 

III.  Upon  the  principles  advanced  above,  it  is  agreed 
by  all  that  public  enemies  are  entitled  to  burial.  Ap- 
pian  calls  it  the  common  right  of  war,  with  which,  Taci- 
tus says,  no  enemy  will  refuse  to  comply.  And  the 
rules,  respecting  this,  are,  according  to  Dio  Chrysostom, 
observed,  even  while  the  utmost  rage  of  war  still  con- 
tinues. <(  For  the  hand  of  death,  as  the  writer  just 
quoted  observes,  has  destroyed  all  enmity  towards  the  fal- 
len, and  protected  their  bodies  from  all  insult.*  Exam- 
ples to  this  purpose  may  be  found  in  various  parts  of 
history.  Alexander  ordered  those  of  the  enemy,  that  were 
killed  at  the  battle  of  Issus  to  be  honoured  with  the  rites 
of  burial,  and  Hannibal  did  the  same  to  Caius  Flaminius, 
Publius  Aemilius,  Tiberius  Gracchus,  and  Marcellus,  the 
Roman  Generals.  So  that  you  would  suppose,  says  Sil- 
ius  Italicus,  he  had  been  paying  these  honours  to  a  Car- 
thaginian General.  The  Romans  treated  Hanno,  and 
Pompey  Mithridates  in  the  same  manner.  If  it  were 
necessary  to  quote  more  instances,  the  conduct  of  De- 
metrius on  many  occasions,  and  that  of  Antony  to  king 
Archelaus  might  be  named. 

When  the  Greeks  were  at  war  with  the  Persians,  in 
one  part  of  their  military  oath  they  swore  to  bury  all  the 
dead  belonging  to  the  ALLIES,  and  when  they  were  victori- 
ous, to  bury  even  the  BARBARIANS.  After  a  battle,  it  was 
usual  for  both  sides  to  obtain  leave  to  bury  the  dead. 
Pausanias,  in  his  account  of  the  Athenian  affairs,  men- 
tions the  practice  of  the  Athenians  who  buried  the 
Medes,  regarding  it  as  an  act  of  piety  due  to  all  men. 
We  find  from  the  Jewish  writers,  that  for  the  same  rea- 
son, their  high  priests,  who  were  forbidden  to  come  near 
a  dead  body,  if  they  found  one,  were  obliged  to  bury  it. 
But  Christians  deemed  BURIAL  an  act  of  such  importance, 


THE   RIGHTS   OF   WAR   AND   PEACE  217 

that  they  would  allow  their  church-plate  to  be  melted 
down,  and  sold  to  defray  the  expences  as  they  would  have 
done  to  maintain  the  poor,  or  to  redeem  captives. 

There  are  some  few  instances  to  the  contrary,  but 
they  are  reprobated  by  the  universal  feelings  of  man- 
kind, and  such  cruelty  deprecated  in  the  most  solemn 
terms.  Claudian  calls  it  a  bloody  deed  to  plunder  the 
dead,  and  still  more  so  to  refuse  them  the  covering  of  a 
little  sand. 

IV.  Respecting  those,  who  have  been  guilty  of  atro- 
cious crimes,  there  is  reason  to  entertain  some  doubt, 
whether  the  right  of  burial  is  due  to  them. 

The  divine  law  indeed,  that  was  given  to  the  Hebrews, 
and  which  is  fraught  with  every  precept  of  virtue  and 
humanity,  ordered  those,  who  were  crucified,  which  was 
the  most  ignominious  kind  of  punishment  that  could  be 
inflicted,  to  be  buried  on  the  same  day.  Owing  to  this 
law,  as  Josephus  observes,  the  Jews  paid  such  regard  to 
burial,  that  the  bodies  of  those,  who  were  executed  pub- 
licly as  criminals,  were  taken  away  before  sun-set,  and 
committed  to  the  ground.  And  other  Jewish  writers  are 
of  opinion  that  this  was  intended  as  a  degree  of  rever- 
ence to  the  divine  image,  after  which  man  was  formed. 

To  allow  burial  to  criminals  must  have  been  the  prac- 
tice in  the  time  of  Homer:  for  we  are  told,  in  the  third 
book  of  the  Odyssey,  that  ^Egisthus,  who  had  added  the 
crime  of  murder  to  that  of  adultery,  was  honoured  with 
funeral  ceremonies  by  Orestes,  the  son  of  the  murdered 
king.  It  was  the  custom  with  the  Romans,  as  may  be 
seen  from  Ulpian,  never  to  refuse  giving  the  bodies  of 
criminals  to  their  relatives,  to  bury.  The  Emperors, 
Diocletian,  and  Maximian,  in  a  rescript,  declared,  that 
they  did  not  refuse  to  deliver  up,  for  burial,  those,  who 
had  deservedly  been  put  to  death  for  their  crimes. 

In  reading  the  history  of  civil  wars ;  we  find  more  fre- 
quent instances  of  indignities  offered  to  the  dead,  than 
in  the  accounts  of  any  foreign  wars.  In  some  cases,  the 
bodies  of  executed  criminals  are  exposed  to  public  view, 
and  hung  in  chains,  a  custom  the  propriety  of  which  is 
very  much  doubted  both  by  Theological  and  Political 
writers.  So  far  from  approving  of  the  practice,  we  find 
such  writers  bestowing  praises  upon  many,  who  had 
ordered  funeral  honours  to  be  paid  to  those,  who  would 
not  themselves  have  allowed  the  same  to  others.  An 
action  of  this  kind  was  done  by  Pausanias  the  Lacedae- 


2i8  HUGO   GROTIUS 

monian,  who,  being  urged  by  the  people  of  Aegina  to 
retaliate  upon  the  Persians  for  their  treatment  of  Leon- 
idas,  rejected  the  advice,  as  unbecoming  his  own  char- 
acter and  the  Grecian  name.  The  Pharisees  allowed 
burial  even  to  King  Jannaeus  Alexander,  who  had  treated 
the  dead  bodies  of  their  countrymen  with  every  kind  of 
insult.  Though  indeed  on  certain  occasions,  God  may 
have  punished  some  offenders  with  the  loss  of  such  a 
right,  he  did  so  by  virtue  of  his  own  prerogative,  which 
places  him  above  the  restrictions  of  all  law.  And  when 
David  exposed  the  head  of  Goliah,  it  was  done  to  one, 
who  was  an  alien,  and  a  despiser  of  God,  and  might  be 
justified  by  that  law,  which  confined  the  name  and  priv- 
ileges of  neighbour  to  the  Hebrews. 

V.  There  is  one  thing  not  improper  to  be  observed, 
that  the  rule  prevailing  among  the  Hebrews  with  respect 
to  burying  the  dead,  contained  an  exception,  as  we  are 
informed  by  Josephus,  excluding  those,  who  had  com- 
mitted suicide.  Nor  is  it  surprising  that  a  mark  of 
ignominy  should  be  affixed  to  those,  on  whom  death  itself 
cannot  be  inflicted  as  a  punishment.  Aristotle  in  the 
fifth  book  of  his  Ethics,  speaks  of  the  infamy  universally 
attached  to  suicide.  Nor  is  the  observation  at  all  weakened 
by  the  opinions  of  some  of  the  Grecian  poets,  that  as  the 
dead  are  void  of  all  perception,  they  cannot  be  affected 
either  by  loss  or  shame.  For  it  is  a  sufficient  reason 
to  justify  the  practice,  if  the  living  can  be  deterred  from 
committing  actions,  for  which  they  see  a  mark  of  infamy 
set  upon  the  dead. 

In  opposition  to  the  Stoics,  and  others,  who  admitted 
the  dread  of  servitude,  sickness,  or  any  other  calamity, 
or  even  the  ambitious  love  of  glory  to  be  a  just  cause 
of  voluntary  death,  in  opposition  to  them,  the  Platonists 
justly  maintain,  that  the  soul  must  be  retained  in  the 
custody  of  the  body,  from  which  it  cannot  be  released, 
but  at  the  command  of  him,  who  gave  it.  On  this  sub- 
ject there  are  many  fine  thoughts  in  Plotinus,  Olympio- 
dorus,  and  Macrobius  on  the  dream  of  Scipio. 

Brutus,  following  the  opinions  of  the  Platonists,  had 
formerly  condemned  the  death  of  Cato,  whom  he  him- 
self afterwards  imitated.  He  considered  it  as  an  act  of 
impiety  for  any  one  to  withdraw  himself  from  his  alle- 
giance to  the  supreme  being,  and  to  shrink  from  evils, 
which  he  ought  to  bear  with  fortitude.  And  Megasthenes, 
as  may  be  seen,  in  Strabo  book  xv.  remarked  the  disap- 


THE   RIGHTS   OF   WAR  AND   PEACE  219 

probation,  which  the  Indian  sages  expressed  of  the  con- 
duct of  Calanus:  for  it  was  by  no  means  agreeable  to 
their  tenets,  that  any  one,  through  impatience,  should 
quit  his  post  in  life.  In  the  fifth  book  of  Quintus  Cur- 
tius,  there  is  an  expression  of  King  Darius  to  this  effect, 
that  he  had  rather  die  by  another's  guilty  hand  than  by 
his  own.  In  the  same  manner  the  Hebrews  call  dea\h  a 
release,  or  dismission,  as  may  be  seen  not  only  in  the 
Gospel  of  St.  Luke,  ch.  ii.  v.  19,  but  in  the  Greek  ver- 
sion of  the  Old  Testament,  Gen.  xv.  2,  and  Numb,  xx, 
towards  the  conclusion:  and  the  same  way  of  speaking 
was  used  by  the  Greeks.  Plutarch,  in  speaking  of  con- 
solation, calls  death  the  time,  when  God  shall  relieve  us 
from  our  post. 

VI.  There  are  certain  other  rights  too,  which  owe  their 
origin  to  the  voluntary  law  of  nations,  such  as  the  right 
of  possession  from  length  of  time,  the  right  of  succession 
to  any  one  who  dies  intestate,  and  the  right  resulting 
from  contracts,  though  of  an  unequal  kind.  For  though 
all  these  rights,  in  some  measure,  spring  from  the  law  of 
nature,  yet  they  derive  their  confirmation  from  human 
law,  whether  it  be  in  opposition  to  the  uncertainty  of 
conjecture,  or  to  certain  other  exceptions,  suggested  by 
natural  reason:  points,  all  of  which  have  been  slightly 
touched  upon  in  our  discussions  on  the  law  of  nature. 


CHAPTER   XX. 

ON  PUNISHMENTS. 

Definition  and  origin  of  punishment  —  In  what  manner  punishment 
relates  to  strict  justice  —  The  right  of  punishing  allowed  by  the 
law  of  nature,  to  none,  except  to  those,  who  are  innocent  of  the 
crimes  and  misdemeanours  to  be  punished  —  Difference  of  motive 
between  human  and  divine  punishment  —  In  what  sense  revenge  is 
naturally  unlawful  —  The  advantages  of  punishment,  threefold  — 
The  law  of  nature  allows  any  one  to  inflict  punishment  upon  an 
offender,  yet  with  a  distinction — The  regard  which  the  law  of 
nations  pays  to  the  benefit  of  the  injured  party,  in  the  infliction  of 
punishment  —  General  utility  of  punishments  —  What  is  determined 
by  the  law  of  the  Gospel,  in  this  respect  —  Answer  to  the  objections 
founded  upon  the  mercy  of  God,  as  displayed  in  the  Gospel  —  Cap- 
ital punishments  objected  to  as  cutting  off  all  possibility  of  repent- 
ance—  Not  safe  for  private  Christians  to  inflict  punishments,  even 
when  allowed  to  do  so,  by  the  law  of  nations  —  Prosecutions,  for 
certain  offences,  to  be  carried  on  in  the  name  of  the  public  and 
not  of  individuals  —  Internal  acts  not  punishable  by  man  —  Open 
acts,  when  inevitable  through  human  infirmity  not  punishable  — 
Actions,  neither  directly  nor  indirectly  injurious  to  society,  not 
punishable  by  human  laws  —  The  reasons  of  that  exemption  —  The 
opinion,  that  pardon  can  never  be  granted,  refuted  —  Pardon  shewn  • 
to  be  allowable  before  the  establishment  of  penal  law  —  But  not  in 
all  cases  —  Allowable  also  subsequently  to  the  establishment  of 
penalties  —  Internal  and  external  reasons  —  Opinion,  that  there  can 
be  no  just  reason  for  dispensing  with  laws,  except  where  such 
dispensation  can  be  implied  as  authorised  by  the  law,  examined 
and  refuted  —  Punishment  estimated  by  the  desert  of  the  offender 
—  Different  motives  compared  —  Motives  which  ought  to  restrain 
men  from  sin  —  Scale  of  offences  according  to  the  precepts  of  the 
Decalogue  —  Capacity  of  the  offender  —  Punishment  mitigated  from 
motives  of  charity,  except  where  there  are  stronger  motives  of  an 
opposite  kind  —  Facility  or  familiarity  of  crimes  aggravates  their 
nature  —  Clemency,  proper  exercise  of  —  Views  of  the  Jews  and 
Romans  in  inflicting  punishment  —  War  considered  as  a  punishment 
— Whether  hostilities  can  justly  be  commenced  for  intended  aggres- 
sions—  Whether  Kings  and  Nations  are  justified  in  making  war  to 
punish  offences  against  the  law  of  nature,  not  immediately  affect- 
ing themselves  or  their  subjects  —  The  opinion,  that  jurisdiction  is 
naturally  necessary  to  authorise  punishment,  refuted  —  Distinction 
between  the  law  of  nature,  and  civil  customs,  and  the  divine  volun- 
tary law  —  The  question,  whether  war  can  be  undertaken  to  punish 
acts  of  impiety — considered  —  The  being  of  God,  whence  known  — 
Refusal  to  embrace  the  Christian  religion  not  a  sufficient  cause  of 
war  —  Cruel  treatment  of  Christians,  justifiable  cause  of  war  — 
Open  defiance  of  religion  punishable. 

(230) 


THE   RIGHTS   OF   WAR  AND  PEACE  221 

I.  IN  THE  preceding  part  of  this  treatise,  where  the 
causes,  for  which  war  may  be  undertaken,  were  explained, 
it  was  considered  in  a  two-fold  light,  either  as  a  repara- 
tion for  injuries,  or  as  a  punishment.  The  first  of  these 
points  having  been  already  cleared  up,  the  latter,  which 
relates  to  punishments,  remains  to  be  discussed,  and  it 
will  require  a  more  ample  investigation;  for  the  origin 
and  nature  of  punishment,  not  being  perfectly  under- 
stood, has  given  rise  to  many  errors. 

Punishment  taken  in  its  most  general  meaning  signifies 
the  pain  of  suffering,  which  is  inflicted  for  evil  actions. 
For  although  labour  may  some  times  be  imposed  instead 
of  punishment;  still  it  is  considered  in  that  case,  as  a 
hardship  and  a  grievous  burden,  and  may  therefore  prop- 
erly be  classed  with  sufferings.  But  the  inconveniences, 
which  men  are  some  times  exposed  to,  by  being  excluded 
from  the  intercourse  of  society  and  the  offices  of  life, 
owing  to  infectious  disorders,  or  other  similar  causes, 
which  was  the  case  with  the  Jews  on  account  of  many 
legal  impurities,  these  temporary  privations  are  not  to  be 
strictly  taken  for  punishments :  though  from  their  resem- 
blance to  each  other,  they  are  often,  by  an  abuse  of 
terms,  confounded. 

But  among  the  dictates  laid  down  by  nature,  as  lawful 
and  just,  and  which  the  ancient  Philosophers  call  the  law 
of  Rhadamanthus,  the  following  maxim  may  be  placed, 

THAT    IT    IS   RIGHT    FOR   EVERY    ONE     TO    SUFFER   EVIL    PROPOR- 
TIONED   TO    THAT    WHICH    HE    HAS   DONE. 

Which  gave  occasion  to  Plutarch,  in  his  book  on  exile, 
to  say  that  "justice  is  an  attribute  of  God,  avenging  all 
transgressions  of  the  divine  law;  and  we  apply  it  as  the 
rule  and  measure  of  our  dealings  with  each  other.  For 
though  separated  by  the  arbitrary  or  geographical  bounds 
of  territory,  the  eye  of  nature  looks  upon  all,  as  fellow 
subjects  of  one  great  empire.*  Hierocles  gives  a  fine 
character  of  justice,  calling  it  the  healing  remedy  of  all 
mischief.  Lactantius  in  speaking  of  the  divine  wrath 
calls  it  (<  no  inconsiderable  mistake  in  those,  who  degrade 
human  or  divine  punishment  with  the  name  of  cruelty 
or  rigour,  imagining  that  some  degree  of  blame  must 
always  attach  to  the  punishment  of  the  guilty.®  What 
has  been  said  of  the  inseparable  connection  of  a  penalty 
with  every  offense  is  similar  to  the  remark  of  Augustin, 
"that  to  make  a  punishment  JUST,  it  must  be  inflicted 
for  some  crime. w  He  applies  the  expression  to  explain 


222  HUGO   GROTIUS 

the  divine  justice,  where  through  human  ignorance,  the 
offence  is  often  undiscoverable  though  the  judgment  may 
be  seen. 

II.  There  are  diversities  of  opinion  whether  punish- 
ment comes  under  the  rank  of  ATTRIBUTIVE  or  that  of 
STRICT  justice.  Some  refer  it  to  justice  of  the  attributive 
kind,  because  offences  are  punished  more  or  less,  in  pro- 
portion to  their  consequences,  and  because  the  punish- 
ment is  inflicted  by  the  whole  community,  as  it  were, 
upon  an  individual. 

It  is  undoubtedly  one  of  the  first  principles  of  justice 
to  establish  an  equality  between  the  penalty  and  the  of- 
fence. For  it  is  the  business  of  reason,  says  Horace,  in 
one  of  his  Satires,  to  apply  a  rule  and  measure,  by  which 
the  penalty  may  be  framed  upon  a  scale  with  the  of- 
fence, and  in  another  place,  he  observes,  that  it  would 
be  contrary  to  all  reason  to  punish  with  the  rack  a  slave, 
who  deserved  nothing  more  than  the  whip.  I.  Sat.  iii. 
v.  77,  and  119.  The  divine  law,  as  may  be  seen  from  the 
xxv.  Chapter  of  Deuteronomy,  rests  upon  the  same  principle. 

There  is  one  sense,  in  which  all  punishment  may  be 
said  to  be  a  matter  of  strict  justice.  Thus,  when  we  say 
that  punishment  is  due  to  any  one,  we  mean  nothing 
more  than  that  it  is  right  he  should  be  punished. 
Nor  can  any  one  inflict  this  punishment,  but  the  person, 
who  has  a  right  to  do  so.  Now  in  the  eye  of  the  law, 
every  penalty  is  considered,  as  a  debt  arising  out  of 
a  crime,  and  which  the  offender  is  bound  to  pay  to  the 
aggrieved  party.  And  in  this  there  is  something  ap- 
proaching to  the  nature  of  contracts.  For  as  a  seller, 
though  no  EXPRESS  stipulation  be  made,  is  understood  to 
have  bound  himself  by  all  the  USUAL,  and  NECESSARY 
conditions  of  a  sale,  so,  punishment  being  a  natural  con- 
sequence of  crime,  every  heinous  offender  appears  to  have 
VOLUNTARILY  incurred  the  penalties  of  law.  In  this 
sense  some  of  the  Emperors  pronounced  sentence  upon 
malefactors  in  the  following  manner,  <(  you  have  brought 
this  punishment  upon  Yourselves. w  Indeed  every  wicked 
action  done  by  design  was  considered  as  a  voluntary  con- 
tract to  submit  to  punishment.  For,  as  Michael  the 
Ephesian  observes  on  the  fifth  book  of  Aristotle's  Nico- 
machean  Ethics,  the  ancients  gave  the  name  of  contract, 
not  only  to  the  voluntary  agreements  which  men  made 
with  each  other,  but  to  the  obligations  arising  from  the 
sentence  of  the  law. 


THE   RIGHTS   OF   WAR  AND   PEACE  223 

III.  But  to  whom  the  right  of  punishing  properly  be- 
longs, is  a  matter  not  determined  by  the  law  of  NATURE. 
For  though  reason  may  point  out  the  necessity  of  pun- 
ishing the  guilty,  it  does  not  specify  the  PERSON,  to 
whom  the  execution  of  it  is  to  be  committed. 

Natural  reason  indeed  does  so  far  point  out  the  person, 
that  it  is  deemed  most  SUITABLE  for  a  SUPERIOR  ONLY  to 
be  invested  with  the  power  of  inflicting  punishment.  Yet 
this  demonstration  does  not  amount  to  an  ABSOLUTE  NECES- 
SITY, unless  the  word  superior  be  taken  in  a  sense  imply- 
ing, that  the  commission  of  a  crime  makes  the  offender 
inferior  to  every  one  of  his  own  species,  by  his  having 
degraded  himself  from  the  rank  of  men  to  that  of  the 
brutes,  which  are  in  subjection  to  man ;  a  doctrine,  which 
some  Theologists  have  maintained.  Philosophers  too 
agreed  in  this.  For  Democritus  supposed  that  power 
naturally  belonged  to  superior  merit,  and  Aristotle  was 
of  opinion  that  both  in  the  productions  of  nature  and 
art  the  inferior  were  provided  for  the  use  of  the  superior 
parts. 

From  this  opinion  there  arises  a  necessary  conse- 
quence, that  in  a  case  where  there  are  equal  degrees  of 
guilt  in  two  parties,  the  right  of  punishment  belongs  to 
neither. 

In  conformity  to  which,  our  Saviour,  in  the  case  of  the 
woman  taken  in  adultery,  pronounced  that  whoever  of 
the  accusers  was  without  sin,  meaning  sins  of  equal 
enormity,  should  cast  the  first  stone.  John  viii.  7.  He 
said  so  for  this  reason,  because  in  that  age  the  manners 
of  the  Jews  were  so  corrupt,  that,  under  a  great  parade 
of  sanctity,  the  most  enormous  vices,  and  the  most  wicked 
dispositions'  were  concealed.  A  character  of  the  times 
which  the  Apostle  has  painted  in  the  most  glowing 
colours,  and  which  he  closes  with  a  reproof  similar  to 
what  his  divine  master  had  given,  <(  therefore  thou  art 
inexcusable,  O  man,  whosoever  thou  art  that  judgest:  for 
wherein  thou  judgest  another  thou  condemnest  thyself; 
for  thou  that  judgest  doest  the  same  things."  Rom.  ii.  i. 
Applicable  to  which  there  is  a  remark  of  Seneca's,  that 
"no  sentence,  which  is  passed  by  a  guilty  person  can 
have  any  weight."  And  in  another  place,  the  same 
writer  observes,  that  (<if  we  look  into  ourselves  and  con- 
sider whether  we  have  been  guilty  of  the  offences  we 
are  going  to  condemn,  we  shall  be  more  moderate  in 
our  judgments." 


224  HUGO   GROTIUS 

IV.  Another  part  of  our  inquiry  respects  the  end  pro- 
posed  by  punishment.     For  by  what   has   hitherto   been 
said,  it  was   only  meant  to  shew  that   in   punishing  the 
guilty   no   injury    is    done   to    them.     Still    the    absolute 
necessity  of   punishment    does    not   follow   from   thence. 
For    the    pardon   of   the    guilty    on    many   occasions   has 
been   considered   as   the   most   beauteous   feature   in  the 
divine  and  human  character.     Plato  is  celebrated  for  his 
saying  that  <(  justice  does  not   inflict  punishment  for  the 
evils  that  are  done  and  cannot  be  retrieved;  but  to  pre- 
vent the  same  from  being   done   for  the  time  to  come.* 
From  Thucydides  we  find  that  Diodorus  in  addressing  the 
Athenians   on   the    conduct  of  the   Mitylenaeans,  advises 
them  (<to  forbear   punishing   their  avowed   injustice,  un- 
less   it    was    probable    that    the    punishment    would    be 
attended  with  some  good  effect." 

These  maxims  may  be  true  with  regard  to  human 
punishments:  for  one  man  being  so  nearly  allied  to 
another  by  blood,  no  degree  of  suffering  should  be 
inflicted,  but  for  some  consequent  good.  But  the  case  is 
different  with  respect  to  God,  to  whom  Plato  injudi- 
ciously applies  the  above  sentiments.  For  though  the 
divine  counsels  will  undoubtedly  have  the  good  of  men 
in  view,  as  the  end  of  all  punishment,  yet  the  bare  re- 
formation of  the  offender  cannot  be  the  sole  object. 
Since  the  divine  justice,  though  tempered  with  mercy 
must  adhere  to  the  truth  of  the  revealed  word,  which 
threatens  the  wicked  with  punishment  or  destruction. 

The  honour  therefore  of  God,  as  well  as  the  example 
held  up  to  men,  will  be  a  consequence  resulting  from 
his  punishment  of  the  wicked. 

V.  A  dramatic    writer    has  said    that  <(the   pain  of  an 
enemy    is  a  healing    remedy    to  a    wounded    spirit,"    in 
which  he  agrees  with  Cicero  and  Plutarch :  in  the  opinion 
of  the  former   <(pain  is   mitigated  by    the  punishment  of 
an  adversary, w    and  in  that    of  the  latter  "satisfaction  is 
a  sweet  medicine  to  a  troubled  mind." 

But  a  disposition  like  this,  when  stripped  of  all  disguise 
and  false  colouring,  will  be  found  by  no  means  suitable 
to  the  reasonable  soul  of  man,  whose  office  it  is  to 
regulate  and  controul  the  affections.  Nor  will  that  dis- 
position receive  any  sanction  from  the  law  of  nature, 
who  in  all  her  dictates,  inclines  to  unite  men  in  society 
by  good  will,  rather  than  to  separate  them  by  cherish- 
ing animosity.  For  it  is  laid  down  by  reason,  as  a 


THE   RIGHTS  OF  WAR   AND   PEACE  225 

leading  axiom  in  her  code  of  laws,  that  no  man  shall  do 
any  thing  which  may  hurt  another,  unless  it  be  for  the 
purpose  of  some  evident  and  essential  good.  But  the 
pain  of  an  enemy  considered  solely  of  such,  is  no  bene- 
fit to  us,  but  a  false  and  imaginary  one,  like  that 
derived  from  superfluous  riches  or  things  of  the  same 
kind.* 

In  this  acceptation  revenge  is  condemned  both  by 
Christian  teachers  and  heathen  philosophers.  In  this  re- 
spect, the  language  of  Seneca  approaches  very  near  to 
the  perfection  of  Christian  morals.  He  calls  revenge,  in 
its  usual  and  proper  acceptation,  a  term  of  inhumanity, 
differing  from  injury  only  in  degree.  For  retaliation  of 
pain  can  be  considered  as  nothing  better  than  excusable 
sin.  Juvenal,  after  describing  the  different  tempers,  over 
which  revenge  exercises  the  most  powerful  dominion, 
and  shewing  the  amiable  characters  over  which  it  has 
no  influence,  concludes  it  to  be  the  pleasure  of  a  little 
and  infirm  mind. 

From  the  preceding  arguments  it  is  plain  that  punish- 
ment cannot  justly  be  inflicted  from  a  spirit  of  revenge. 
We  proceed  therefore  to  consider  the  advantages  attend- 
ing its  just  infliction. 

VI.  This  seems  the  most  proper  place  for  reviewing 
those  distinctions  in  the  motives  of  punishment,  which 
have  been  used  by  Plato  in  his  Gorgias,  and  by  Taurus 
the  philosopher  in  a  passage  quoted  by  Gellius  in  the 
fourteenth  chapter  of  his  fifth  book.  These  distinctions 
seem  to  result  naturally  from  the  end  of  all  punishment. 
Plato  indeed  considers  the  amendment  of  the  offender, 
and  the  example  given  to  others,  as  the  two  principal 
motives:  but  Taurus  has  added  a  third,  which  he  calls 
satisfaction,  and  which  is  defined  by  Clemens  Alexandri- 
nus,  to  be  repayment  of  evil,  contributing  to  the  benefit 

*  Nothing  forms  a  more  striking  contrast  between  ancient  and 
modern  war,  then  the  personal  animosities,  which  seemed  to  operate 
upon  the  combatants  in  the  former,  and  the  public  and  national  objects, 
WITHOUT  ANY  PERSONAL  CONCERN,  upon  which  the  latter  are  undertaken. 
Peruse  any  ancient  historian,  or  the  battles  in  Homer  and  Virgil,  WHICH 

THOUGH   FICTIONS,    DESCRIBE   THE    MANNERS     OF   THE  AGE,     and    yOU     SCC 

combatants  engaged,  on  whom  the  laws  of  nature  and  of  nations  seem  to 
have  lost  their  force.  Read  the  accounts  of  modern  warfare  and  you 
find  hostilities  commenced,  not  from  private  animosity,  but  from  some 
great  and  national  object,  in  the  prosecution  of  which  the  feelings  of 
the  individuals  appointed  to  conduct  them  are  not  the  only  springs  of 
action. 
t| 


226  HUGO   GROTIUS 

of  both  the  aggrieved  and  avenging  party.  Aristotle 
passing  over  example  as  a  motive,  confines  the  object  of 
punishment  to  the  amendment  or  correction  of  the  of- 
fender. But  Plutarch  has  not  made  the  same  omission: 
for  he  has  said,  that  "where  immediate  punishment  fol- 
lows the  execution  of  a  heinous  crime,  it  both  operates  to 
deter  others  from  committing  the  same  crime,  and  ad- 
ministers some  degree  of  consolation  to  the  injured  and 
suffering  person. M  And  this  is  what  Aristotle  calls 
commutative  justice.  But  these  matters  require  a  more 
minute  inquiry.  We  may  observe  therefore  that  there  is 
nothing  contrary  either  to  human  or  divine  law,  in  pun- 
ishments, which  have  the  good  of  the  offender,  or  that 
of  the  injured  party,  or  of  any  persons  whatsoever  in 
view. 

The  three  proper  ends  are  obtained  by  that  kind  of 
punishment,  which  some  philosophers  have  called  correc- 
tion, some  chastisement,  and  others  admonition.  Paulus 
the  Lawyer,  has  given  it  the  name  of  correction; 
Plato  styles  it  a  lesson  of  instruction,  and  Plutarch  a 
medicine  of  the  soul,  reforming  and  healing  the  suf- 
ferer, while  it  operates  as  a  painful  remedy.  For  as  all 
deliberate  acts,  by  frequent  repetition,  produce  a  pro- 
pensity, which  ripens  into  habit,  the  best  method  of  re- 
forming vices  in  their  earliest  stage  is  to  deprive  them  of 
their  sweet  savour  by  an  infusion  of  subsequent  pain.  It 
is  an  opinion  of  the  Platonists,  repeated  by  Apuleius, 
that  <(  impunity  and  the  delay  of  reproof  are  more  severe 
and  pernicious  to  an  offender  than  any  punishment  what- 
soever," and,  in  the  words  of  Tacitus,  "violent  dis- 
orders must  be  encountered  with  remedies  proportionably 
strong. }> 

VII.  The  power  of  inflicting  the  punishment,  subserv- 
ient to  this  end,  is  allowed  by  the  law  of  nature  to  any 
one  of  competent  judgment,  and  not  implicated  in  sim- 
ilar or  equal  offences.  This  is  evident  as  far  as  verbal 
reproof  goes,  from  the  maxim  of  Plautus,  that  "  to  bestow 
merited  reproof  upon  a  friend  is  useful,  upon  certain 
occasions,  though  by  no  means  a  grateful  office. w  But  in 
all  kinds  of  constraint  and  compulsion,  the  difference 
made  between  the  persons,  who  are  allowed,  and  who  are 
not  allowed  to  exercise  it  is  no  appointment  of  natural 
law,  but  one  of  the  positive  institutions  of  the  civil  law. 
For  no  such  natural  distinction  could  be  made,  any 
farther  than  that  reason  would  intrust  parents  with  the 


THE   RIGHTS  OF   WAR  AND   PEACE  227 

peculiar  use  of  such  an  authority,  in  consideration  of  their 
affection.  But  laws,  in  order  to  avoid  animosities,  have, 
with  respect  to  the  authority  of  punishing,  passed  over 
the  common  kindred  subsisting  among  mankind,  and  con- 
fined it  to  the  nearest  degrees  of  relation:  as  may  be 
seen  in  many  records,  and  particularly  in  the  code  of 
Justinian,  under  the  title  of  the  POWER  OF  RELATIVES  TO 

CORRECT    IN    ORDER    TO    REFORM    OFFENDERS.       And    CyrUS,    in 

the  v.  book  and  viii.  chapter  of  Xenophon's  history  of 
the  Expedition,  addresses  the  soldiers  to  the  following 
purport,  *  If  I  punish  any  one  for  his  good,  I  am  willing 
to  submit  to  justice ;  but  would  it  not  be  equally  reason- 
able that  parents  and  masters  should  submit  to  justice, 
for  having  corrected  children,  or  the  Surgeon  be  respon- 
sible for  having  used  the  incision-knife,  where  the  patient's 
case  required  it  ? w 

But  this  kind  of  corrective  punishment  does  not  extend 
to  death,  which  cannot  be  considered,  as  a  benefit  in 
itself,  except  INDIRECTLY  and  BY  WAY  OF  REDUCTION,  as  it 
is  called  by  Logicians,  who,  in  order  to  confirm  negatives, 
reduce  them  to  things  of  an  opposite  kind.  Thus,  in 
Mark  xiv.  21,  when  our  Saviour  says,  that  it  were  better 
for  some,  they  had  never  been  born,  so,  for  incurable 
dispositions,  it  is  better,  that  is  would  be  a  less  evil,  to 
die  than  to  live;  since  it  is  certain  that  by  living  they 
will  grow  worse.  Plutarch  calls  such  men  a  pest  to 
others,  but  the  greatest  pest  to  themselves.  Galen  says 
that  capital  punishments  are  inflicted  to  prevent  men 
from  doing  harm  by  a  longer  course  of  iniquity,  and  to 
deter  others  by  the  fear  of  punishment,  adding  that  it  is 
better  men  should  die,  when  they  have  souls  so  infected 
with  evil,  as  to  be  incurable. 

There  are  some,  who  think  that  these  are  the  persons 
meant  by  the  Apostle  John,  who  describes  them  as  sin- 
ning a  sin  unto  death.  But  as  their  arguments  are  not 
satisfactory,  charity  requires  that  no  one  should  be 
deemed  incorrigible,  except  upon  the  clearest  grounds. 
So  that  punishment  with  such  an  end  in  view  can  only 
be  inflicted  for  important  causes. 

VIII.  The  benefit  accruing  to  an  injured  person  from 
the  punishment  of  an  offender  consists  in  his  being  se- 
cured  in  future  against  a  recurrence  of  the  same  injury 
from  that  offender,  or  from  others.  There  are  three 
ways  of  preventing  this  recurrence — by  removing  the 
offender  —  by  depriving  him  of  the  power  of  doing  harm, 


228  HUGO   GROTIUS 

or  lastly  by  compelling  him  to  better  habits  of  thought 
or  action,  which  is  the  reformation  produced  by  the  pun- 
ishment already  spoken  of.  It  is  not  every  kind  of 
punishment,  which  can  produce  such  effects;  it  must  be 
open  and  conspicuous,  to  operate  as  an  example,  that 
may  deter  others  from  the  commission  of  the  same 
crimes.  A  vindictive  punishment,  inflicted  by  an  injured 
individual,  or  by  any  other  person,  when  it  is  restrained 
by  bounds  and  limitations  of  this  kind,  has  nothing  un- 
lawful in  it  considering  the  law  of  nature  by  itself, 
apart  from  all  human  and  divine  institutions,  and  every 
adventitious  circumstance,  that  may  create  a  deviation 
from  the  primitive  dictates  of  nature.  We  have  said  that 
it  may  be  inflicted  by  any  other  individual,  as  well  as 
by  the  injured  person:  for  it  is  comformable  to  nature, 
that  one  man  should  assist  another.  But  as  our  judg- 
ment is  apt  to  be  biassed  by  our  affections,  in  cases, 
where  our  interest  is  concerned;  since  the  formation  of 
families  into  states,  judges  have  been  appointed,  and  in- 
vested with  the  power  of  punishing  the  guilty,  whereby 
the  natural  liberty  of  personal  redress,  originally  allowed 
to  individuals,  was  abolished,  or  at  least  abridged.  And 
it  is  only  in  places,  on  the  seas  for  instance,  where  no 
judicial  remedy  can  be  obtained,  that  this  natural  liberty 
continues  in  force.  There  is  a  circumstance  related  of 
Julius  Caesar,  applicable  to  this  subject.  While  he  was 
only  in  a  private  station,  being  taken  prisoner  by  some 
pirates,  after  he  had  redeemed  himself  by  a  sum  of 
money,  he  applied  to  the  proconsul  for  redress.  But  his 
application  being  neglected,  he  fitted  out  a  certain  num- 
ber of  ships,  attacked  and  defeated  the  pirates,  and 
ordered  them  all  to  be  crucified. 

The  practice  of  private  individuals,  exercising  punish- 
ment, was  the  origin  of  single  combats,  so  familiar  to 
the  Germans  before  the  introduction  of  Christianity,  and 
not  yet  sufficiently  laid  aside.  We  are  informed  by 
Velleius  Paterculus,  in  his  second  book,  that  the  Germans 
were  surprised  to  see  the  forms  of  Roman  jurisprudence, 
and  those  disputes,  which  they  themselves  decided  by  the 
sword,  settled  by  law.  By  the  Jewish  law,  the  nearest  in 
blood  to  the  deceased  were  allowed  to  kill  a  murderer,  if  taken 
beyond  the  places  of  refuge.  And  the  Jewish  interpreters 
observe,  that  in  GENERAL  the  infliction  of  punishment,  as 
a  retaliation  for  murder,  it  intrusted  to  no  hand,  but 
that  of  the  judge:  as  it  is  difficult  for  an  individual  in 


THE  RIGHTS   OF   WAR  AND   PEACE  229 

his  own  case  to  moderate  his  resentment.  The  same 
custom  of  allowing  individuals  to  avenge  their  own  wrongs 
prevailed  among  the  ancient  Greeks,  as  we  find  from  the 
words  of  Theoclymenes,  in  Homer's  Odyssey.  But  it 
prevailed  most  in  countries,  where  public  courts  of  justice 
were  not  established.  From  hence  St.  Augustin  defines 
those  wars  to  be  just,  which  are  intended  to  avenge 
injuries.  And  Plato,  in  his  twelfth  book  ON  A  COMMON- 
WEALTH, justifies  the  prolongation  of  hostilities,  till  the 
aggressor  is  reduced  to  submit  to  just,  and  equitable 
terms. 

IX.  GENERAL  utility  which  was  considered  as  the  third 
end  proposed  by  punishment,  may  be  divided  into  the 
same  number  of  parts,  as  the  benefit  accruing  from 
thence  to  individuals.  For  these  are  the  objects  in  view, 
either  to  prevent  the  individual,  who  has  injured  one 
person,  from  doing  injury  to  others :  an  object  which  can 
be  accomplished  only  by  removing  the  offender,  disarm- 
ing him  of  the  means  of  farther  injury,  or  by  reforming 
him:  or  it  may  be  inflicted  to  deter  others  from  being 
allured,  by  an  example  of  impunity,  to  commit  acts  of 
molestation  or  enmity.  And  the  infliction  of  punishment, 
for  such  reasons,  is  a  RIGHT  granted  by  the  law  of  nature 
to  every  individual.  Upon  this  principle,  Plutarch  ob- 
serves in  the  life  of  Pelopidas,  that  good  men  are  designed 
by  nature  for  the  office  of  perpetual  magistracy,  and 
superiority  belongs  to  those,  in  whom  the  characters  of 
truth  and  justice  unite. 

But  as  it  requires  a  painful  degree  of  patience  to 
examine  into  facts,  and  no  inconsiderable  share  of  skill 
and  equity  to  affix  the  extent  of  punishments ;  in  order  to 
prevent  quarrels  from  arising  through  the  presuming  con- 
ceit, which  every  man  entertains  of  his  own  wisdom,  and 
to  which  others  are  averse  to  yield;  in  all  well  regulated 
communities,  it  has  been  usual  to  select  for  the  tribunals 
of  justice  those,  who  were  deemed  worthy  of  such  honour, 
or  likely  to  become  so,  from  their  integrity  and  wisdom. 
Democritus  has  said,  there  would  have  been  no  occasion 
for  laws  to  prevent  every  man  from  living  according  to 
his  own  humour,  if  one  had  not  done  injury  to  another. 
For  envy  was  the  origin  of  strife.  But  as  we  have  just 
observed,  that  it  happens,  in  the  case  of  revenge,  so  in 
this  kind  of  punishment,  inflicted  for  the  sake  of  example, 
there  are  traces  and  remains  of  ancient  law,  in  those 
places,  and  ameng  those  persons,  that  are  subject  to  no 


230  HUGO   GROTIUS 

CIVIL  jurisdiction;  and  in  certain  other  cases  besides. 
Thus  any  Hebrew,  according  to  the  customs  of  that 
people,  if  he  should  turn  away  from  God,  or  from  the 
law  of  God,  or  should  seduce  others  to  false  worship, 
might  immediately  be  put  to  death  by  any  one  whatso- 
ever. The  Hebrews  call  that  an  act  of  ZEAL,  which  was 
first  done  by  Phinehas,  and  which  afterwards  became  a 
custom.  Thus  Mattathias  slew  a  Jew,  who  was  polluting 
himself  with  Grecian  rites.  In  the  same  manner,  in  the 
book  commonly  called  the  third  book  of  Maccabees,  it  is 
related  that  three  hundred  other  Jews  were  put  to  death 
by  their  own  countrymen.  Nor  could  any  other  pretext 
be  assigned  for  stoning  Stephen,  and  conspiring  against 
Paul.  Philo,  and  Josephus  abound  in  instances  of  this 
kind.  There  are  many  countries  where  we  may  trace 
the  remains  of  primitive  law,  in  the  plenary  power  al- 
lowed to  masters  over  their  slaves,  and  to  parents  over 
their  children,  extending  even  to  inflict  the  punishment 
of  death.  So  the  Ephori  of  Sparta  might  put  a  citizen 
to  death  without  the  formality  of  trial.  From  what 
has  been  said,  it  is  easy  to  infer  what  punishment  the  law 
of  nature  authorises,  and  how  far  it  has  remained  in  force. 
X  We  come  now  to  consider  whether  the  law  of  the 
Gospel  has  confined  that  liberty  within  closer  bounds. 
It  has  been  observed  in  another  part  of  this  treatise, 
that  it  is  not  surprising  that  some  things,  which  are  al- 
lowed by  natural  and  civil  law,  should  be  forbidden  by 
the  divine  law,  owing  to  its  great  perfection,  and  the 
superiority  of  its  rewards  over  any  thing  that  human  na- 
ture can  bestow.  To  the  attainment  of  which  it  is  not 
unreasonable  that  virtues  should  be  required,  far  exceed- 
ing the  simple  precepts  of  nature.  Those  kinds  of  cor- 
rection that  leave  neither  any  mark  of  infamy,  nor  any 
permanent  injury,  but  are  suited  to  the  age,  or  other 
circumstances  of  the  sufferer,  if  inflicted  by  those,  who 
derive  such  a  permission  from  human  laws,  for  instance 
by  parents,  guardians,  or  masters,  contain  nothing  re- 
pugnant to  the  precepts  of  the  Gospel,  as  may  be  clearly 
understood  from  the  nature  of  the  thing  itself.  For 
they  are  remedies  to  the  mind  no  less  harmless  than 
medicines  ungrateful  to  the  palate  are  to  the  body.  But 
as  to  revenge  the  case  is  different  For  the  infliction  of 
punishment,  only  to  gratify  resentment,  so  far  from  be- 
ing conformable  to  the  Gospel,  has  been  shewn  above  to 
be  repugnant  even  to  the  law  of  nature. 


THE   RIGHTS   OF   WAR  AND   PEACE  231 

The  Jewish  law  indeed  not  only  forbids  the  cherishing 
of  hatred  against  a  neighbour,  that  is,  one  of  the  same 
country  and  people,  but  requires  certain  common  acts  of 
kindness  to  be  bestowed  even  upon  enemies  of  that  de- 
scription. The  Gospel  therefore,  comprehending  all  men 
under  the  appellation  of  neighbour,  not  only  forbids  us 
to  hurt  our  enemies,  but  commands  us  to  do  them  good; 
a  commandment  clearly  stated  in  the  Gospel  of  St. 
Matthew.  Yet  the  law  permitted  the  Jews  to  seek  re- 
venge for  injuries  of  a  more  grievous  kind,  not  with 
their  own  hands,  but  by  appealing  to  the  judge.  But  Christ 
does  not  give  us  the  same  permission,  as  appears  from 
that  opposition  which  he  makes  between  the  permissions 
of  former  times,  and  those  of  his  own  law.  "You  have 
heard  that  it  was  said  an  eye  for  an  eye — but  I  say 
unto  you,  love  your  enemies,  etc.* 

For  although  what  follows  relates  peculiarly  to  the  re- 
pelling of  injury,  and,  in  some  measure,  abridges  this 
permission,  yet  it  passes  a  much  greater  censure  upon 
revenge,  rejecting  it  as  an  indulgence  suitable  only  to  a 
more  imperfect,  and  carnal  state. 

To  inflict  punishment  by  way  of  retaliation  was  disap- 
proved of  even  by  those  of  the  Jews,  who  were  dis- 
tinguished for  their  worth  and  wisdom;  because  they 
regarded  not  only  the  LETTER,  but  the  PURPOSE  and  SPIRIT 
of  the  law.  This  appears  from  Philo,  in  whose  writings 
we  find  the  Jews  of  Alexandria,  upon  the  calamity  of 
Flaccus,  their  persecutor,  addressing  themselves  to  God  in 
the  following  language,  <(We  do  not  rejoice,  O  Lord,  in 
the  calamity  or  punishment  of  an  enemy,  being  taught 
by  thy  holy  laws  to  feel  for  the  miseries  of  men. w  And 
in  this  case  we  may  apply  that  general  command  given  by 
Christ  to  forgive  all  who  have  offended  or  injured  us,  that 
is,  neither  to  do,  nor  to  wish  them  evil,  through  resent- 
ment of  the  evil  they  have  done  to  us.  But  what  can  be 
said  of  revenge,  not  as  regarding  the  past,  but  as  pro- 
viding security  for  the  future  ?  Here  too  Christ  requires 
of  his  followers  the  same  disposition  to  pardon  injuries, 
particularly,  if  the  offender  shews  any  probable  signs  of 
repentance.  Luke  xvii.  3.  Eph.  iv.  32.  Col.  iii.  13.  In 
those  passages  a  full  remission  is  intended,  such  a  remis- 
sion as  restores  the  offender  to  his  former  situation  of 
friendship  or  confidence :  and  consequently  nothing  can  be 
required  of  him  under  the  name  of  punishment.  Besides, 
if  there  were  no  such  marks  of  repentance,  the  reparation 


232  HUGO   GROTIUS 

of  a  loss  is  not  to  be  pursued  with  to  much  rigour;  a 
doctrine  inferred  from  the  precept  of  Christ  enjoining  us 
to  give  up  the  garment  along  with  the  cloak. 

But  if  it  is  likely  that  connivance  at  an  offence  will  be 
attended  with  imminent  inconvenience  and  even  danger 
to  ourselves,  we  should  be  contented  with  such  securities 
as  may  be  effectual,  and  at  the  same  time  operate  with  as 
little  prejudice  as  possible  to  the  offender.  For  even 
among  the  Jews,  the  law  of  retaliation  was  not  in  use,  as 
we  are  informed  by  Josephus,  and  other  writers  of  that 
nation.  But  in  addition  to  the  expence  incurred,  which 
the  law  treats  of  as  a  separate  point,  the  injured  party 
usually  received  a  pecuniary  fine  instead  of  retaliation; 
the  repayment  of  expences  being  considered  simply  as  a 
restitution,  and  not  a  penalty. 

It  remains  now  to  consider  punishment,  as  providing 
for  the  PUBLIC  and  not  INDIVIDUAL  security,  which  is  ac- 
complished either  by  removing  the  guilty  person  out  of 
the  way  or  by  restraining  him  from  doing  farther  mis- 
chief, or  by  deterring  others  through  the  severity  of 
example,  none  of  which  means  it  has  been  clearly  proved 
were  abolished  by  Christ;  for  in  giving  his  precepts  he 
affirmed  that  he  destroyed  no  part  of  the  law.  The  law 
of  MOSES  indeed,  which  in  these  respects  was  to  remain 
in  force  as  long  as  the  Jewish  Polity  existed,  strictly  en- 
joined magistrates  to  punish  murder  and  other  similar 
crimes.  But  if  the  precepts  of  Christ  could  exist  in  con- 
junction with  the  law  of  Moses,  as  far  as  it  imposed  cap- 
ital punishments,  surely  they  may  exist  in  conjunction 
with  human  laws,  which  in  this  respect  are  but  an  imi- 
tation of  the  divine  laws. 

XI.  Some,  in  support  of  an  opposite  opinion,  allege  the 
supreme  mercy  of  God,  as  it  is  displayed  in  the  new 
covenant,  and  which  is  given  as  an  example  for  men, 
and  for  magistrates,  in  particular,  to  follow,  who,  in  the 
exercise  of  authority,  execute  the  laws  of  the  Deity. 
This  opinion  may  in  some  measure  be  true,  but  not  to 
that  extent,  which  the  authors  of  it  intend.  For  the 
great  mercy  of  God  displayed  in  the  new  covenant  has 
a  peculiar  reference  to  offences  against  the  primitive  law, 
or  even  against  the  law  of  Moses,  before  the  time  that 
men  had  received  a  knowledge  of  the  Gospel.  For  of- 
fences committed  after  the  promulgation  of  the  Gospel, 
especially  if  they  are  accompanied  with  a  hardened  ob- 
stinacy, are  treated  with  much  severer  judgments  than 


THE  RIGHTS  OF  WAR  AND   PEACE  233 

any  that  were  declared  by  Moses.  For  God  punishes 
sins  of  that  kind  not  only  in  a  future  state,  but  in  the 
present  life.  But  for  sins  of  that  kind,  to  obtain  the 
act  of  mercy  and  indulgence,  the  offender  must  inflict 
punishment  upon  himself,  not  in  a  slight  or  trivial  man- 
ner, but  with  a  heartfelt  sorrow,  and  resolution  to  sin 
no  more. 

In  the  same  manner  it  is  maintained  that  if  men  are 
actuated  by  repentance,  they  are  ENTITLED  to  impunity. 
We  do  not  say  that  men  are  never  actuated  by  sincere 
repentance;  but  it  is  not  every  kind  of  avowal  or  ac- 
knowledgment, by  which  God  is  moved  to  remit  the 
WHOLE  of  a  punishment,  as  appears  from  the  case  of 
David.  As  the  supreme  judge  therefore  might  dispense 
with  the  full  penalty  of  the  law,  inflicting  death,  and  yet 
exercise  no  inconsiderable  severity  upon  offenders,  so  now 
he  may  dispense  with  the  sentence  of  eternal  death,  at 
the  same  time  leaving  the  sinner  to  find  an  early  grave 
by  the  stroke  of  some  calamity,  or  by  the  hand  of  human 
justice. 

XII.  and  XIII.  Another  objection  made  against  capi- 
tal punishments  is  that  such  a  kind  of  sentence  and 
execution  is  cutting  off  a  criminal  from  all  possibility 
of  repentance.  But  those,  who  make  the  objection,  must 
know,  that  in  cases  of  that  kind,  venerable  and  upright 
judges  use  the  greatest  precautions,  and  suffer  no  one 
to  be  hurried  away  to  execution,  without  a  reasonable 
time  allowed  for  reflection  and  deep  abhorrence  of  his 
crime:  a  repentance,  which  though  prevented  by  the  in- 
terposing hand  of  death  from  producing  the  fruits  of 
righteousness,  we  have  reason  to  suppose,  from  the  case 
of  the  thief  pardoned  on  the  cross,  may  be  accepted 
with  God. 

But  if  on  the  other  hand  it  be  said  that  longer  life 
might  have  been  of  more  avail  to  serious  repentance,  we 
may  observe  that,  in  some  cases,  the  reply  of  Seneca 
may  be  made,  that  to  men  of  that  description  death  is 
often  the  greatest  blessing  which  can  be  bestowed;  for, 
in  the  words  of  Eusebius,  their  career  of  wickedness 
cannot  otherwise  be  shortened,  or  reformed.  These  in 
addition  to  the  preceding  arguments  in  the  former  part 
of  this  treatise  may  be  deemed  a  sufficient  answer  to 
those,  who  assert  that  all  capital  punishments,  and  even 
all  punishments,  without  exception,  are  abolished  by  the 
precepts  of  our  Saviour.  The  Apostle,  consigning  to 


234  HUGO   GROTIUS 

the  office  of  kings  the  use  of  the  sword,  as  an  exercise 
of  his  divine  commission  to  avenge  all  wrongs,  instructs 
us  to  pray  for  kings,  that,  as  true  Christians,  in  their 
royal  capacity,  they  may  be  a  protection  to  the  inno- 
cent. An  end,  which  even  after  the  introduction  of  the 
gospel,  could  not  easily  be  obtained,  owing  to  the  de- 
pravity of  mankind,  if  the  violence  of  some  were  not 
restrained  by  the  exemplary  punishment  of  others.  Such 
authority  is  the  more  necessary,  when  even  in  the  midst 
of  so  many  examples  and  punishments,  the  lives  of  the 
innocent  are  scarcely  secure.  There  have  been  indeed, 
it  cannot  be  denied,  happy  instances  where  the  sentence 
of  death  was  changed  for  that  of  perpetual  labour,  a 
practice,  as  we  are  informed  by  Diodorus,  followed  by 
Sabacon,  king  of  Egypt,  a  prince  renowned  for  his 
piety.  Balsamon  observes  that  the  penal  laws  of  Rome, 
inflicting  death,  were  most  of  them  changed  by  the 
Christian  emperors  of  later  times,  and  other  kinds 
of  punishment  were  substituted,  that  the  guilty 
might  receive  deeper  impressions  of  repentance,  and 
their  punishment  operate  as  a  more  durable  exam- 
ple. 

XIV.  From   what  has  been   said,  it  may  be   inferred, 
how  unsafe  it  is   for  a  private   Christian,   whether   from 
motives  of  personal  interest,  or  from  those  of  the  public 
good,  to  take  upon  himself  the  punishment  of  an  offender, 
and  particularly  to  inflict  death.     Although,  as  it  has  been 
said  before,  it  may,  IN  SOME  CASES,  be  allowed  by  the  law 
of    nations.      A    permission,  that  has   given  rise   to    the 
laudable  practice,  prevailing  in  some  countries  of  furnish- 
ing adventurers  with  public  instructions  and  commissions 
to    chase    and    capture    pirates,    wherever   they    may  be 
found.     But  those  adventurers  may  be  considered  as  dis- 
charging a  public   duty  rather  than  as  acting  upon  their 
own  authority. 

XV.  A   custom   not  unlike  to  which   prevails  in  many 
places,    of    not    allowing    individuals    to   bring    criminal 
charges  against  others  at  their  own  pleasure:   that   office 
belonging  to   persons   invested   with   public  authority   to 
undertake   it.     So    that   no    one    can    contribute   towards 
shedding  the  blood  of  another,  but  as  an  act  of  necessary 
duty.     In  reference  to  this  custom,  a  canon  of  the  council 
of  Eliberis   excluded   from  the  communion    any  believer 
who  had  been   instrumental   in  causing   the   proscription 
or  death  of  another. 


THE  RIGHTS  OF  WAR  AND   PEACE  235 

XVIII.*  It  is  proper  now  to  consider  whether  all  wicked 
acts  are  of  that  kind,  which  are  punishable  by  human 
laws.  In  reply  to  which  we  may  answer  that  they  cer- 
tainly are  not. —  In  the  first  place,  mere  acts  of  the  mind, 
or  criminal  intentions,  though  by  subsequent  confession, 
or  some  other  accident,  they  may  come  to  the  knowledge 
of  others,  are  not  punishable  by  human  laws.  Because, 
as  it  was  proved  in  a  former  part  of  this  treatise,  it  is 
not  consonant  to  the  law  of  nature,  that  INTENTIONS  ONLY 
should  give  rise  to  any  right,  or  obligation  amongst  men. 
And  in  this  sense  the  maxim  of  the  Roman  law  is  to  be 
taken,  THAT  NO  ONE  DESERVES  PUNISHMENT  FOR  MERE 
THOUGHTS.  Yet  this  does  not  prevent  intentions,  when 
they  have  an  influence  upon  the  conduct,  from  being 
considered  as  actual  deeds,  and  equally  deserving  of 
punishment. 

XIX.  In  the  second  place,  even  outward  acts,  cannot 
be  punished  by  men  where  they  arise  through  some  in- 
evitable infirmity  of  human  nature.  For  although  there 
can  be  no  sin,  except  where  there  is  a  freedom  of  will, 
yet  to  be  at  all  times  free  from  all  infirmity  and  sin,  is 
more  than  can  be  expected  from  the  condition  of  man.  So 
that  Sopater,  Hierocles  and  Seneca  among  the  Philoso- 
phers; Philo  among  the  Jews;  Thucydides  among  the 
historians;  and  innumerable  writers  among  Christians 
have  maintained  that  sin  is  interwoven  with  our  very 
nature.  Nay  indeed,  a  doubt  may  be  entertained  whether 
such  acts  can  rightly  and  properly  be  called  sins.  For 
though  seeming  to  be  voluntary  actions,  they  will  be 
found,  when  minutely  considered,  not  to  proceed  from  a 
free  and  deliberate  exercise  of  the  will.  "Laws,  says 
Plutarch  in  the  life  of  Solon,  should  be  framed  to  suit 
possible  cases,  the  legislator  may  obtain  every  beneficial 
end  by  punishing  a  few  offenders,  where  the  indiscrim- 
inate punishment  of  multitudes  would  be  attended  with 
no  good  effect." 

There  are  some  actions,  which  though  not  imputable 
to  human  nature  itself,  are  inevitable  consequences  of 
the  influence  of  bodily  habits  on  the  mind.  Actions  like 
these  are  punishable  in  human  courts,  owing  to  the  crim- 
inality of  voluntary  contracting,  or  of  not  sufficiently 
guarding  against,  those  habits. 

•Sections  XVI  and  XVII  of  the  original,  relating  only  to  the  ref- 
utation of  certain  abstruse  opinions,  are  omitted  in  the  translation. — 
(Translator.) 


336  HUGO   GROTIUS 

XX.  In  the  third  place,  human  courts  of  justice  cannot 
take  cognizance  of  those  offences,  which  neither  directly 
nor  indirectly,  affect   the  public    or   individuals.     For  no 
reason  can  be  assigned,  why  such  offences  should  not  be 
left  to  the  judgments  of  God,  whose  all-seeing  eye  must 
know   them,  whose    equity  will    weigh   them,  and  whose 
power  can  punish  them.     It  would  be  unnecessary  there- 
fore, and   presumptuous    in   human    tribunals   to  assume 
such  decisions.     However  we  must  except  from  this  rule 
those   corrective   kinds   of   punishment,  designed  for   the 
reformation  of  offenders,  even  where  their  conduct  is  no 
way  injurious  to  others. 

Neither  are  those  actions  punishable,  which  are  directly 
opposite  to  the  virtues  of  compassion,  liberality,  or  grati- 
tude, in  the  performance  of  which  virtues  natural  justice 
allows  of  no  compulsion. 

XXI.  The  point,  necessarily  to  be  considered  next,  is 
the  opinion,  whether  it  is  lawful  some  times  to  grant  par' 
don.     For  the  Stoics  maintain  it  not  to  be  lawful,  as  may 
be  seen  from  a  fragment  in  Stobaeus,  under  the  title  of 
MAGISTRACY,  from  Cicero's  speech  for  Murena,  and  towards 
the  conclusion  of  Seneca's  books  on  Clemency;  but  their 
arguments   are   fallacious,   and  unsubstantial.     They   say 
"that  pardon   is  the  remission  of  a  penalty,  that  OUGHT 
to  be  paid;   but  a  wise  man  does  every  thing,  which   he 
OUGHT  to  do.*     Here  the    fallacy  lies   in   the   use  of   the 
word  OUGHT.     For  if  it   means   that   an   offender  owes  a 
penalty,  that  is,  that  he  may  be  punished  without  injus- 
tice, it  will    not   necessarily  follow  that   the   person  who 
does  not  punish  him,  is  doing  what  he  ought  not  to  do. 
But  if  the  word  be  taken  to  imply  that   a  good  man,  or 
a  wise  man,  ought  at  all  events,  to  exact  the  penalty,  it 
may  be  observed  in  reply  that  THIS  does  not  always  hap- 
pen, and  therefore,  in  this  sense,  the  penalty  or  punish- 
ment   may   be    considered,    not    as    a    debt,    but    only   a 
permission.     And    this  will    hold    good,  both   before  and 
after  the  establishment  of  penal  laws. 

XXII.  Before  the  establishment  of  penal  laws,  punish- 
ment, beyond   all  doubt,  might  be  inflicted;   because  by 
the  law  of  nature,  every  offender  made   himself  subject 
to  punishment ;  but  it  is  not  a  natural  and  inevitable  con- 
sequence of  its  being  lawful,  that  it  should  be  enforced. 
For  this  depends  upon  the  connection  between  the  ends, 
for  which  punishments  were  established,  and  the  punish- 
ments themselves.      If   the   ends   proposed   therefore   are 


THE   RIGHTS  OF   WAR   AND   PEACE  237 

n<5t  immediately  necessary,  in  a  moral  point  of  view,  or 
if  other  ends  of  a  different  kind,  but  not  less  wise  and 
salutary  should  be  devised,  or  that  the  ends  originally 
designed  may  be  obtained  by  some  other  means,  in  all 
these  cases,  the  right  of  punishment  may  be  saved,  there 
being  no  immediate  occasion  to  inflict  it.  Thus  for  in- 
stance, where  an  offence  is  known  to  very  few,  there  can 
be  no  immediate  occasion  for  a  public  punishment,  by 
way  of  exemplary  exposure,  which  in  some  cases  might 
be  even  injurious  to  society  rather  than  productive  of 
advantage.  Upon  which  Cicero  in  a  letter  to  his  brother 
makes  a  pertinent  remark,  respecting  one  Zeuxis,  observ- 
ing, that  *  had  he  once  been  brought  into  court,  he  could 
not  have  been  released,  but  there  was  no  necessity  that 
a  search  should  be  made  for  him,  in  order  to  bring  him 
to  trial. w  —  In  the  next  place  the  right  and  end  of  punish- 
ment may  be  dispensed  with,  where  a  man's  own  ser- 
vices, or  those  of  his  family  are  sufficient  to  outweigh 
the  consideration  of  his  offences.  <(  For,  in  the  words  of 
Seneca,  an  act  of  kindness  eclipses  the  fault  of  an  injury.  ® 
—  And  in  the  last  place,  where  reproof  operates  upon  an 
offender,  as  a  means  of  correction  and  amendment,  or 
where  the  injured  party  is  satisfied  with  an  acknowledg- 
ment of  the  offence,  the  occasion  for  punishment  is  done 
away.  It  was  this  motive  to  clemency,  which  the  son 
of  David  had  in  view,  where  he  observes  that  it  behoves 
the  righteous  to  be  merciful.  For  as  all  punishment, 
especially  of  the  more  severe  cast,  has  in  it  some  thing, 
which  tho'  not  repugnant  to  justice,  is  at  variance,  at 
least,  with  charity,  reason  easily  suffers  us  to  forbear  in- 
flicting it,  unless  that  forbearance  is  opposed  by  some 
weightier,  juster,  and  more  undeniable  motive  of 
charity. 

XXIII.  Cases  may  occur  where  it  is  absolutely  neces- 
sary to  inflict  punishment,  as  upon  notorious,  and  atro- 
cious criminals,  or  where  it  is  for  the  public  good,  to 
dispense  with  that  severity,  or  where  the  judicial  authori- 
ties may  use  their  own  discretion  in  mitigating  or  enforc- 
ing the  sentence  of  the  law.  Upon  which  Seneca  pertinently 
remarks,  that  the  exercise  of  lenity  should  always  be  an 
act  of  free  deliberation.  As  to  the  disputes  of  the  Stoics 
on  these  points,  they  are,  in  the  opinion  of  Cicero  and 
others,  debates  upon  words  rather  than  things:  conse- 
quently they  are  less  worthy  of  philosophical  contem- 
plation, 


238  HUGO   GROTIUS 

XXIV.  There  seems  to  be  a  greater  difficulty  in  decid- 
ing what  is   to  be   done,    subsequently  to   the   establish- 
ment of  penal   laws;    because    a   legislator  is   bound,  in 
some   measure,    by   his   own   laws.      But   this,    as   it  was 
proved  in  a  former  part  of  this  treatise,  is  only  true  with 
respect  to  the  legislator,  in  his  individual  capacity,   as  a 
private  member  of  the  state,  but  not  in  his  public  char- 
acter,   in   which   he    represents    the   whole    Majesty  and 
Authority  of  the   state   itself.     As  such,  he  can  entirely 
repeal  the  law :  for  it  is  the  nature  of  all  human  laws,  to 
depend  upon  the  will   of  the   maker,  not  only  for  their 
origin,  but  also  for  their  duration.     Yet  a  lawgiver  ought 
not,  upon  trivial   grounds,  to  repeal  a  statute,  for,  in  so 
doing  he  would  be  acting  against  the  rules  of  sovereign 
justice.     But   as  the   legislator  has   power  to  repeal   the 
whole  of  a  law,  so  in  the  case  of  some  particular  person, 
or  individual  action,  he  may  relax  its  rigour,  allowing  it  to 
remain  in  other  respects,  as  it  stood  before.     As  an  exam- 
ple of  this,  the  actions  of  the  Deity  may  be  cited,  who, 
according  to  the  testimony  of  Lactantius,  in  enacting  his 
laws,  did  not  deprive  himself  of  the  exercise  of  his  mercy, 
to  grant  pardons.     "The    Emperor,    says  Augustin,  may 
recall  his  sentence,  pardon  and  release  a  criminal ;  because, 
as  he  further  explains  if,   the    person  who  has  power   to 
make  laws,1  is  not   INVARIABLY   bound  to   observe  them.* 
Yet  this  privilege  of  departing  from  the  letter  must  never 
be  used  but  for  the   most  important   reasons.     Although 
such  reasons  cannot  be  precisely  defined,  yet  it  is  certain 
that,  since  the  establishment  of   civil  law,  more  weighty 
ones  are  required  to  authorise  such  pardons,  than  before 
that  period.     Because  punishments  have  derived  an  addi- 
tional sanction  from  the  authority  of  the  law,  which  ought 
to  be  respected  and  observed. 

XXV.  The  reasons  for  releasing  any  one  from  the  pen- 
alties of  the   law,    are   of   two   kinds,    either   internal   or 
external. 

An  internal  reason,  to  justify  a  departure  from  the  sen- 
tence of  the  law,  must  be  one,  where  the  punishment  is 
severe  when  compared  with  the  offence. 

XXVI.  An  external  reason   is   one   arising  from    some 
favourable  circumstance  in  the  character  of  the  offender, 
or  some  fair  hopes  that  may  be  entertained  of  his  future 
conduct.     And  these  reasons  will  have   the   most   weight 
in  cases,  where    the   particular   motives   for   making   the 
law  cease    to   operate.     For    although    a   general   reason, 


THE   RIGHTS   OF   WAR   AND   PEACE  239 

unopposed  by  any  other  of  a  weightier  kind,  may  suffi- 
ciently authorise  the  enaction  of  a  law;  yet  where  the 
peculiar  reason,  for  which  that  law  was  made,  has  ceased 
to  exist,  the  relaxation  of  it,  or  even  a  total  dispensation 
will  be  attended  with  less  danger  to  the  universal  au- 
thority of  law  in  general. 

Such  a  dispensation  indeed  is  most  allowable,  where  an 
offence  has  been  committed  through  ignorance,  though 
the  party  so  committing  it  is  not  entirely  free  from 
blame,  or  through  some  invincible  infirmity  of  mind,  in 
all  which  cases,  a  Christian  ruler  will  have  an  eye  to  the 
example  of  God,  who,  under  the  old  covenant,  appointed 
many  such  offences  to  be  atoned  for  by  certain  expiatory 
offerings :  Levit.  iv.  and  v. :  and,  in  the  New  Testament, 
he  has  expressly  declared  his  intention  to  pardon  such 
offences,  upon  due  repentance.  Luke  xxiii.  34. ;  Heb.  iv. 
15.  and  v.  2. ;  i  Tim.  i.  13.  And  Chrysostom  observes, 
that  Theodosius,  impressed  with  those  words  of  our  Sav- 
iour, *  Father,  forgive  them,  for  they  know  not  what 
they  do, w  was  led  to  grant  a  pardon  to  the  people  of  Antioch. 

XXVII.  And  hence  it  is  evident,  how  mistaken  Ferdi- 
nand Vasquez  is  in  his  judgment,  when  he  maintains  that 
there  can  be  no  just  reason  for  dispensing  with  a  law, 
that  is,  for  releasing  any  one  from  its  obligations,  except 
where  the  lawgiver,  upon  being  consulted,  expressly  de- 
clares that  he  never  intended  it  should  be  observed  to 
its  full  extent.  For  he  does  not  make  the  proper  dis- 
tinction between  an  equitable  interpretation,  and  the  en- 
tire relaxation  of  a  law.  For  which  reason,  in  another 
place,  he  reproves  Thomas,  and  Sotus,  because  they  say 
that  a  law  is  binding  although  the  particular  reason  of 
its  being  made  may  have  ceased,  as  if  they  supposed  that 
the  mere  letter  of  the  law  was  the  source  of  its  obliga- 
tion, an  opinion  which  they  never  did  entertain.  So  far 
from  every  relaxation  coming  under  the  idea  of  equity, 
properly  so  called ;  those  relaxations  may  be  freely  granted 
or  refused,  which  could  not  be  done  in  matters  of  equity, 
to  which  even  acts  of  charity  or  those  of  reasonable  pol- 
icy do  not  strictly  belong.  For  there  is  a  great  difference 
between  the  repeal  of  a  law  upon  fair  or  urgent  grounds, 
and  a  legislator's  declaring  that  at  the  time  of  passing  the  law 
he  had  not  the  particular  offence  or  case  in  contemplation. 

Having  thus  far  considered  the  nature  of  dispensations, 
we  proceed  to  a  review  of  the  merits  upon  which  they 
may  be  granted. 


240  HUGO   GROTIUS 

XXVIII.  From  what   has   been   said   above,  it  appears 
that  in  punishments,  two  things  are  to  be  regarded,  the 
offence,  and   the  object  for  which   they  are   inflicted.     It 
is  consonant  to  justice  that  no  one  should  receive  greater 
punishment  than  he  deserves;  upon  which  Cicero,  in  one 
of    his    letters,    observes,    that,    <(the    same    moderation, 
which  is    commended    in    all   other   things,  ought   to  be 
observed    in     punishments.*      Papinian     therefore   calls 
punishment    an   estimation  of   demerit;  but  this  equality 
established  between  crime  and  punishment,  says  Demos- 
thenes in  his  Letter  in  behalf  of  the  children  of  Lycurgus, 
is  not  the  only  thing   to  be   considered:    the   object  and 
intention   also   of   the   delinquent   must   be   weighed  and 
taken  into  the  account.     But,  if   care   be  taken  to  inflict 
no  more  punishment   than   is  due  for  an  offence;  it  may 
be  greater  or  less,  in  proportion   to  the  utility  to  be  de- 
rived from  thence. 

XXIX.  In   examining   the  different   degrees  of  guilt, 
we  ought  to  take  into  the  account  the  motives  which  im- 
pelled the  offender  to  commit  the  act  —  the  motives,  which 
ought  to  have  restrained  him  therefrom,  and  how  far  he 
was  capable  of  yielding  to  either.     Scarce   any  one  does 
a  wicked   action   without   some   motive,  or   so   far  strips 
himself  of  the  nature  of  man,  as  to  delight  in  such  acts 
from  pure  malignity.     Most  men    are   led   away    by    the 
indulgence  of  their  appetites,  which  engender  sin.     Under 
the   name    of    appetite    also    may  be    comprehended    the 
strong  desire  of  avoiding  evil,  which   is  the   most  conso- 
nant to  nature,  and  therefore  to  be  reckoned  amongst  the 
most  laudable  of  all  desires.     So  that  offences  committed 
for   the   sake   of   avoiding   death,  imprisonment,  pain,  or 
extreme  want  are  generally  deemed  the  most  excusable. 

Which  gave  occasion  to  Demosthenes  to  say,  <(  that  we 
are  justly  more  exasperated  against  those,  who,  abound- 
ing in  riches,  commit  evil  actions,  than  against  those, 
who  are  impelled  by  want  to  do  the  same.  Humane 
judges  are  always  ready  to  make  allowance  for  neces- 
sity: but  where  wealth  is  united  with  injustice,  no  pre- 
text can  be  pleaded  in  excuse."  On  this  score,  Polybius 
excuses  the  Acarnanians,  for  having  neglected,  when 
threatened  with  impending  danger  themselves,  to  fulfil 
the  terms  of  a  defensive  treaty  made  with  the  Greeks 
against  the  Aetolians. 

Besides  the  desire  of  avoiding  evil  there  are  other  de- 
sires tending  to  some  good,  either  real  or  imaginary. 


THE   RIGHTS   OF   WAR   AND   PEACE  241 

Real  advantages,  considered  apart  from  virtues,  and 
those  actions,  which  have  a  virtuous  tendency,  are  either 
such  as  give  delight  themselves,  or,  like  abundance  of 
riches,  can  procure  those  things,  which  administer  to 
pleasure.  Among  advantages  purely  imaginary,  we  may 
reckon  that  of  desiring  to  excel  others,  from  a  spirit  of 
rivalry,  rather  than  from  any  laudable  intention,  or  the 
power  of  gratifying  resentments,  which  the  farther  they 
deviate  from  natural  justice  the  more  shocking  they  are  to 
natural  feeling.  These  appetites  the  Apostle  has  de- 
scribed in  terms  of  marked  censure,  calling  them,  the 
*  lust  of  the  flesh,  the  lust  of  the  eye,  the  pride  of  life. J) 
Here  the  first  member  of  the  sentence  expresses  the  love 
of  pleasure,  the  second  implies  the  insatiable  love  of 
riches,  and  the  third  comprehends  the  pursuit  of  vain 
glory,  and  the  desire  of  revenge. 

XXX.  The  very  injustice  of  all  offences  ought  to  be  a 
GENERAL  motive  with  men,  to  restrain  them  from  the 
commission  of  them.  For  at  present  we  are  not  consid- 
ering sins  of  any  kind,  but  those,  which  extend  their 
consequences  beyond  the  offender  himself,  and  affect 
others.  And  injustice  is  the  more  heinous  and  criminal 
in  proportion  to  the  greatness  of  the  injury,  which  it 
inflicts. 

In  the  highest  rank  of  crimes  and  misdemeanours  there- 
fore, we  may  place  those,  which  are  carried  into  com- 
plete execution:  and  lower  in  the  scale  we  find  those 
criminal  designs,  which  have  proceeded  some  degrees, 
but  not  to  the  last  stage  of  completion.  For  the  aggra- 
vation of  a  criminal  intent  is  measured  by  the  length  to 
which  it  goes.  In  either  class  that  kind  of  injustice  is 
most  notorious,  which  tends  to  disturb  the  common 
peace  of  society,  and  therefore  is  injurious  to  greater 
numbers.  Private  wrongs  follow  in  the  next  degree. 
The  greatest  of  which  are  those  affecting  life,  and  very 
great,  though  somewhat  inferior  in  the  degrees  of  enor- 
mity, are  those,  that  disturb  the  peace  of  families,  which 
is  founded  on  the  marriage-contract.  And  the  last  de- 
scription of  wrongs  are  those  affecting  the  property  of 
individuals,  either  by  taking  it  with  open  violence,  or 
obtaining  or  injuring  it  by  fraudulent  means. 

Some  are    of  opinion   that   a   more   accurate    order  of 

division  might  have  been  used;    but   that   which   is   here 

followed  is  the  same  used  by  God  himself  in  the  delivery 

of  his  commandments.     For  under  the   name   of  parents 

16 


242  HUGO   GROTIUS 

are  included  not  only  those,  who  are  naturally  such,  but 
sovereign  princes,  magistrates,  and  'rulers  of  every  de- 
scription, whose  authority  is  the  key-stone  of  the  fabric 
of  society.  Next  follows  the  prohibition  of  murder;  the 
prohibition  of  adultery,  as  a  violation  of  the  marriage 
bond;  the  prohibition  of  theft,  and  false  evidence:  and 
the  catalogue  of  offences  concludes  with  the  prohibition 
of  criminal  desires.  Among  the  immediate  causes  to 
restrain  the  commission  of  a  crime,  not  only  the  cruelty 
of  the  act  itself,  but  all  the  remote  and  possible  conse- 
quences should  be  taken  into  the  account.  If  a  fire  is 
begun,  or  the  barriers,  that  keep  out  the  waves,  are 
broken  down,  the  perpetrator  brings  upon  his  own  head 
the  blood  of  thousands,  and  all  the  guilt  of  that  ruin  by 
which  they  perish. 

In  addition  to  the  general  characters  of  injustice  above 
described,  we  may  annex  the  crime  of  being  undutiful 
to  parents,  unkind  to  relatives,  or  ungrateful  to  bene- 
factors, which  are  each  of  them  a  violation  of  natural, 
and  in  some  respects  of  civil  law.  The  repetition  of 
these  offences  too  aggravates  their  enormity:  because 
wicked  habits  are  sometimes  worse  than  wicked  actions. 
Hence  we  may  comprehend  the  natural  justice  of  that 
rule,  which  the  Persians  followed,  comparing  the  past  life 
of  an  offender  with  his  present  transgression.  And  this 
ought  to  have  some  weight  in  cases  where  a  crime  does 
not  originate  from  habit,  but  from  a  momentary  occasion. 
But  not  so,  where  a  course  of  former  rectitude  has  been 
changed  into  an  unvaried  course  of  wickedness.  For  in 
such  cases,  God  himself  has  declared  by  the  mouth  of  his 
prophet  Ezekiel,  that  he  has  no  regard  to  the  former  life. 
Even  profane  writers  have  the  same  clear  views  upon 
the  subject;  for  Thucydides  observes,  that  degeneracy 
from  a  righteous  to  a  wicked  course  incurs  double  pun- 
ishment: for  offences  are  least  pardonable  in  those,  who 
know  the  difference  between  right  and  wrong.  In  this 
respect  all  praise  and  admiration  are  due  to  the  wisdom 
of  the  primitive  Christians,  who,  in  estimating  the  mag- 
nitude of  offences,  weighed  the  preceding  and  the  subse- 
quent conduct  of  a  transgressor  against  the  action,  for 
which  he  was  to  be  punished,  as  may  be  seen  from  the 
council  of  Ancyra,  and  other  councils.  It  heightens  the 
enormity  of  an  offence,  where  it  is  committed  in  viola- 
tion of  an  express  prohibition  of  the  law.  For,  in  the 
language  of  Tacitus,  "the  fear  of  prohibition  may  some- 


THE   RIGHTS   OF   WAR  AND   PEACE  243 

times  operate  as  a  restraint,  but  where  men  once  act  in 
defiance  of  that,  fear  and  shame  have  lost  all  their 
force. w 

XXXI.  The  capacity  of  the  person  too,  with  respect  to 
judgment,   disposition,    age,   education,   and    every    other 
circumstance  must  be  taken  into  consideration,  when  we 
look   for   resistance,  or  submission  to  the   suggestions  of 
wicked  inclinations.     The   thought  of   immediate   danger 
augments  fear,  and  recent,  unallayed  pain  inflames  anger; 
so  that  in  either  case  the  calm  dictates  of  reason  cannot 
be  heard.     Offences   therefore   springing  from  the  influ- 
ence of  such  impressions,  are  of  a  less  odious  complexion 
than  those  arising  from  the  love  of  pleasure,  or  the  in- 
dulgence of  hatred.   Because  there  is  less  excuse  for  actions 
of  the  latter  kind,  the  delay,  or  total  forbearance  of  which 
could    occasion   no   serious    inconvenience.     For   it   must 
always  be  kept  in  mind,  that  where  there  are  more  power- 
ful impediments  to  the  exercise  of  judgment,  and  more 
urgent  persuasives  to  natural   feeling,  the   criminality  of 
an  offence  is  proportionably  softened.     And  these  are  the 
rules  for  measuring  the  degrees  of  pardon  or  punishment. 

XXXII.  -The    Pythagoreans    maintain    that   justice   lies 
in  proportioning   the   punishment   to   the    offence:  a  rule 
which  cannot  be  admitted  to  the  full  extent  of  requiring 
an  aggressor  to  suffer  nothing  more  than  a  bare  requital 
of  the  injury  he  has  occasioned.     For  this  is  at  variance 
with  the  most  perfect  laws,  which  in  cases  of  theft  some- 
times require  fourfold,  and  sometimes  fivefold  restitution 
to  be  made.     And  the  Athenian   law,  besides  compelling 
a  thief  to    pay    double    the    value  of   what   he  had  taken 
sentenced  him  to  many  days'  imprisonment.     Among  the 
Indians,  as  we  are  informed  by  Strabo,  the  person,  who 
had  maimed  another,  was  condemned,  in  addition  to  the 
penalty  of  retaliation,  to  lose  his   hand.     Nor  is   it  right, 
as  Philo,  in  explaining  the  punishment  of  murder,  justly 
observes,  for  the  suffering  of  an  innocent  and  guilty  per- 
son to  be  exactly  the  same.     And  hence  it  is  easy  to  see 
why  certain  crimes  not  carried  into  actual  execution,  and 
therefore    less   injurious    than    those,    which    are  so,  are 
punished  only  proportionably  to  the  design. — In  this  man- 
ner false  witnesses  were  treated  by  the  Jewish  law;  and 
by  the  Roman  law,    those    who   walked   ready   armed  to 
commit  murder.      Consequently  a  greater  degree  of  pun- 
ishment is  due,    where    the    criminal    intention    is    com- 
pleted.    But  as   death    is   the    severest   punishment    that 


244  HUGO   GROTIUS 

can  be  inflicted,  and  one  that  can  never  be  repeated;  the 
sentence  of  all  human  law  rests  there:  though  by  the 
custom  of  some  countries  death  is  accompanied  with  tor- 
ture, in  cases  of  extreme  atrocity. 

XXXIII.  In  many  instances,    the  magnitude  of  a  pun- 
ishment can    only   be    measured  by   the   situation   of  the 
person  on  whom  it  is  to    be   inflicted.     Thus   a   fine    im- 
posed upon  the  poor  would  be  a  heavy  sentence,  though 
it  would  scarely  affect  the  rich;  and  a  man  of  high  rank 
would  feel   the    weight    of   a    disgrace,    that    would    but 
lightly  touch  an  ignoble  person.     Such  distinctions  are  fre- 
quently used  by  the  Roman  law,  often  degenerating  into 
acts  of  partiality;   a  fault   from   which  the  law  of  Moses 
is  entirely  free.     And  the  above  rules  may  be  considered 
as  the  scale  for  estimating   the  different  degrees  of  pun- 
ishment. 

XXXIV.  Though    punishment    does    not     exceed    the 
bounds  of  justice,    yet   in    certain  cases   it  may  be  miti- 
gated in  favour  of   a  criminal,    from   motives   of  mercy, 
except  where  such  lenity  to  the  guilty  is  deemed  cruelty 
to  the    innocent,    whose    safety    is   thereby    endangered. 
For  the  escape  of  a  criminal  is  often  an   encouragement 
to  his    own    perseverance    in    iniquity,    and    to    that    of 
others,  who  are  encouraged   by   the  example.     Necessity 
indeed  requires  the    sharpest   remedies    for   the    suppres- 
sion of  crimes;   especially,  where  the  incentives  of  habit 
and  a  facility  to  commit  them  prevail. 

XXXV.  The  divine  law  given  to  the  Hebrews  punished 
the  stealing  of  cattle  from  a  pasture  with  more  severity  than 
breaking  into  a  house,  on  account  of  the  ease  with  which 
the  former  of  those  crimes  might  be  committed.     Exod. 
xxii.   1-9.  Justin  in  speaking  of   the  Scythians,  describes 
them  as  <(  punishing  theft  with   more   severity  than  any 
other  crime;   for  as  they  have  no  covered  habitations  to 
protect  their  flocks,  and   herds   from   depredations,  what 
could  be   safe,  if  thieving  were   allowed  ? w     Though  the 
FAMILIARITY  of  certain  crimes  may  prevent  us  from  being 
surprised  at  their  perpetration,  it  by  no  means  diminishes 
their  atrocity,  or  demands   a  mitigation   of  punishment. 
But,    as    Saturninus    says,    "the    giant-strides    of   crimes 
must  be   impeded  with  the   strongest  bands. >}     In   trials 
for  offences,  clemency  may  be  indulged,  but  in  the  pas- 
sing of  laws  severity  should  be  regarded:  For  the  GENERAL 
nature  of  law  requires  that  offences  should   be  pursued 
with  rigour:  but  in  trials,  in   which   individuals   are    the 


THE   RIGHTS  OF   WAR  AND   PEACE  245 

objects  concerned,  there  may  be  circumstances  to  aggra- 
vate or  diminish  the  offence:  which  leaves  room  for  the 
discretionary  exercise  of  rigour  or  lenity. 

XXXVI.  and  XXXVII.  The  inclination  to  mitigate 
penalties,  where  the  urgent  motives  to  enforce  them  no 
longer  exist,  is  a  point  of  compassion  perfectly  distinct 
from  the  abolition  of  punishment  altogether. 

Nor  has  any  thing  been  omitted,  that  might  tend  to 
clear  up  this  difficult  and  delicate  question.  But  every 
point,  we  trust,  has  been  examined  in  its  proper  place, 
either  respecting  the  magnitude  of  crimes,  as  measured 
by  the  injury  done,  the  habitual  commission  of  such 
offences,  or  the  influence  of  the  motives,  sufficient  to  en- 
courage or  restrain  them.  Indeed  the  character  of  the 
offender  affords  the  most  conclusive  means  for  judging 
of  his  capacity  to  commit  the  crime;  and  that  of  the 
sufferer  often  contributes  something  towards  enabling  us 
to  estimate  the  due  proportion  of  the  penalty.  The  cir- 
cumstances of  the  time,  when  —  the  place,  where — or 
the  facility,  with  which  a  crime  is  perpetrated,  tend  to 
aggravate,  or  lessen  its  enormity.  The  length  of  time 
intervening  between  a  criminal  design  and  its  execution 
gives  us  some  opportunity  to  examine  how  far  the  per- 
petrator was  actuated  by  a  malicious  purpose.  But  the 
true  complexion  of  a  crime  is  to  be  discovered,  partly 
from  the  nature  of  those  appetites,  to  which  it  owes  its 
birth;  and  partly,  on  the  other  hand,  from  the  nature  of 
the  motives  which  ought  to  have  restrained  them.  By 
this  class  of  appetites  the  magnitude  of  a  crime  may  be 
judged  of;  and  the  consequences  are  the  motives  which 
should  operate  to  restrain  them. 

XXXVIII.  It  has  been  shewn  before,  and  it  is  a  truth 
founded  upon  historical   fact,  that  wars   are   undertaken, 
as  acts  of  punishment,  and  this  motive,  added  to  that  of 
redress  for  injuries,  is  the  source,  from  which  the  duties 
of  nations,  relating  to  war,  take  their  rise.     But  it  is  not 
every  injury,  that  can  be  construed   into   a  just   ground 
of  war.     For  laws,  whose  vengeance  is  meant  to  protect 
the  innocent,  and  to  fall  upon  the  guilty,  do  not  regard 
every   case,    as    a    sufficient   warrant   for   their   exertion. 
So  that  there  is  much  truth  in   the   opinion   of   Sopater, 
who   says   that   there   are   trivial    and   common   offences, 
which  it  is  better  to  pass  over  unnoticed,  than  to  punish. 

XXXIX.  The  maxim  laid  down  by  Cato,  in  his  speech 
in  defence  of  the  Rhodians,  that  it  is  not  right  any  one 


246  HUGO   GROTIUS 

should  be  punished  upon  the  bare  suspicion  of  his  hav- 
ing intended  to  commit  aggression  or  injury,  was  well 
applied  in  that  place;  because  no  positive  decree  of  the 
people  of  Rhodes  could  be  alleged  against  them,  nor  was 
there  any  other  proof  beyond  the  CONJECTURE  of  their 
wavering  in  their  policy.  But  this  maxim  is  not  uni- 
versally true. 

For  where  intention  has  proceeded  to  any  outward  and 
visible  signs  of  insatiable  ambition  and  injustice,  it  is 
deemed  a  proper  object  of  jealousy,  and  even  of  punish- 
ment. Upon  this  principle,  the  Romans,  as  may  be  seen 
from  Livy's  account  in  the  xlii".  book  and  xxx.  chapter 
of  his  history,  thought  themselves  justified  in  declaring 
war  against  Perseus,  King  of  Macedon,  unless  he  gave 
satisfactory  proof,  that  he  had  no  hostile  intentions 
against  them,  in  the  naval  and  military  armaments, 
which  he  was  preparing.  And  we  are  informed  by  the 
same  historians,  that  the  Rhodians  urged  it  as  a  rule 
established  by  the  laws  and  customs  of  all  civilized 
states;  that  if  any  one  wished  the  destruction  of  an 
enemy,  he  could  not  punish  him  with  death,  unless  he 
had  actually  done  something  to  deserve  it. 

But  it  is  not  every  unjust  design,  though  indicated  by 
some  outward  act,  which  can  authorize  and  direct  hos- 
tilities. For  if  the  actual  commission  of  crimes  and  ag- 
gressions is,  in  some  cases,  proper  to  be  overlooked, 
much  more  will  it  be  a  mark  of  deliberate  caution  to 
use  the  same  forbearance,  where  nothing  further  than 
the  pure  design  of  aggression  appears.  A  forbearance 
which  Cicero  justifies  upon  the  possibility  that  the  enemy 
may  have  repented  of  his  design,  before  the  execution 
of  it.  No  conclusive  inference  can  be  drawn  from  the 
severity  of  Mosaic  Law  against  all  intended  acts  of 
impiety  and  murder.  For,  in  comparing  human  laws 
with  the  divine  counsels,  whose  depths  we  cannot  sound, 
we  are  liable  to  run  into  error ;  and  the  impulse  of  anger, 
where  it  is  attended  with  no  fatal  consequence,  is  a 
case  in  which  the  infirmity  of  human  nature  calls  for 
pardon.  For  altho'  the  precepts  of  the  decalogue  are 
designed  to  lay  a  restraint  upon  unlawful  desires  as  well 
as  upon  unlawful  actions,  yet  in  addition  to  the  spiritual 
sense,  that  which  is  called  the  carnal,  or  external  com- 
mandment applies  to  those  dispositions  that  are  mani- 
fested by  some  open  act.  This  interpretation  may  be 
deduced  from  a  passage  in  the  gospel  of  St.  Mark,  c.  x. 


THE   RIGHTS   OF   WAR  AND   PEACE  247 

19,  where  the  prohibition  to  defraud  is  immediately  pre- 
ceded by  the  injunction  not  to  steal.  So  that  intended 
aggressions  are  not  to  be  punished  by  force  of  arms, 
except  in  cases  of  atrocity,  where  the  very  design 
threatens  consequences  of  the  greatest  danger.  All 
punishment  therefore  must  have  in  view  either  security 
against  future  aggressions,  reparation  for  the  injury  done 
to  national  or  private  honour,  or  it  must  be  used  as  an 
example  of  awful  severity. 

XL.  It  is  proper  also  to  observe  that  kings  and  those 
who  are  possessed  of  sovereign  power  have  a  right  to  exact 
punishment  not  only  for  injuries  affecting  immediately 
themselves  or  their  own  subjects,  but  for  gross  viola- 
tions of  the  law  of  nature  and  of  nations,  done  to  other 
states  and  subjects.  For  the  liberty  of  inflicting  punish- 
ment for  the  peace  and  welfare  of  society,  which  belonged 
to  individuals  in  the  early  ages  of  the  world,  was  con- 
verted into  the  judicial  authority  of  sovereign  states  and 
princes;  a  right  devolving  upon  them  not  only  as  rulers 
of  others,  but  as  subject  to  the  controul  of  no  earthly 
power.  For  that  is  a  right,  which  can  belong  to  no 
subject.  It  is  never  safe  to  leave  the  entire  assertion  of 
a  man's  own  rights,  or  the  punishment  of  his  wrongs, 
to  his  own  judgment;  for  he  cannot  be  entirely  disinter- 
ested in  his  own  cause.  Partiality  will  make  him  fall 
short  of,  or  prejudice  will  make  him  exceed  the  bounds 
of  justice.  It  was  the  theme  of  praise  bestowed  upon  the 
heroes  of  antiquity,  that  in  their  most  arduous  undertak- 
ings they  avenged  the  wrongs  of  others  rather  than  their 
own.  Upon  this  principle  there  can  be  no  hesitation  in 
pronouncing  all  wars  to  be  just,  that  are  made  upon 
pirates,  general  robbers,  and  enemies  of  the  human  race. 
So  far  this  opinion  agrees  with  that  of  Innocentius  and 
others,  who  maintain  all  war  to  be  lawful  against  those 
who  have  renounced  the  ties  and  law  of  nature.  An 
opinion  directly  the  reverse  is  held  by  Victoria,  Vasquez, 
Azorius,  Molina,  and  others,  who  deem  an  aggression 
done  to  a  prince,  his  government,  or  his  subjects,  or  civil 
jurisdiction  over  the  aggressor,  the  only  justifiable  warrant 
for  inflicting  punishment,  particularly  the  punishment  of 
hostilities.  For  they  suppose  punishment  to  be  an  effect 
purely  arising  from  the  authority  of  civil  law,  whereas, 
according  to  the  proofs  established  in  the  beginning  of 
this  treatise,  it  was  shewn  to  be  a  right  resulting  entirely 
from  the  law  of  nature. 


248  HUGO   GROTIUS 

If  the  opinion  of  those,  from  whom  we  differ,  be  ad- 
mitted, no  enemy  will  have  a  right  to  punish  another,  by 
the  prosecution  of  a  just  war;  a  right,  which  notwith- 
standing is  allowed  and  confirmed  by  the  practice  of  all 
nations,  not  only  after  the  defeat  of  an  enemy,  but  dur- 
ing the  continuance  of  a  war ;  and  that  too,  not  from  any 
civil  jurisdiction,  but  from  a  natural  right,  which  prevailed 
long  before  the  foundation  of  states,  and  which  still 
exists  in  all  its  force,  in  places,  where  the  community 
consists  of  families  distinct,  and  united  as  the  subjects 
of  one  sovereign. 

XLL,  XLIL,  XLIII.  But  certain  precautions  are  neces- 
sary to  prevent  us  from  being  carried  away  by  an  opin- 
ion that  civil  customs,  though  founded  upon  just  reasons, 
and  received  among  many  nations,  are  to  be  reckoned 
as  a  part  of  the  law  of  nature.  And  in  the  next  place, 
it  is  necessary  to  guard  against  enumerating  as  prohibi- 
tions of  natural  law,  things  which  are  not  proved  to  be 
so,  as  certain  kinds  of  marriages  the  taking  of  interest 
for  the  use  of  money,  and  other  positive  injunctions  of 
the  divine,  or  Mosaic  law.  The  third  rule  is,  to  make 
an  accurate  distinction  between  general  principles,  such 
as  the  duty  of  living  according  to  the  dictates  of  rea- 
son, and  those  of  a  more  particular  though  not  less  obvi- 
ous meaning;  as  the  duty  of  forbearing  to  take  what 
belongs  to  another.  To  which  many  truths  may  be  added 
though  not  quite  so  easy  of  apprehension:  among  which 
may  be  named  the  cruelty  of  that  kind  of  punishment, 
which  consists  in  revenge,  delighting  in  the  pain  of  an- 
other. This  is  a  method  of  proof  similar  to  that  which 
occurs  in  mathematics,  the  process  of  which  rises  from 
self-evident  truths  to  demonstrations,  the  latter  of  which, 
though  not  intelligible  to  all  alike,  upon  due  examina- 
tion obtain  assent. 

As  then  in  matters  of  civil  law,  ignorance  is  deemed 
an  excuse,  so  with  respect  to  the  law  of  nature,  wherever 
infirmity  of  understanding  forms  an  invincible  obstruction 
to  the  knowledge  of  its  rules,  such  infirmity  may  be 
alleged  as  a  vindication.  For  as,  in  cases  of  unavoidable 
ignorance  a  great  degree  of  the  guilt  of  sin  is  removed; 
so  it  is  in  some  measure  softened  wherever  this  igno- 
rance subsists,  though  it  may  be  owing  to  former  negli- 
gence. And  for  this  reason,  Aristotle  compares  barbarians, 
in  their  rude,  unformed  state,  to  persons,  whose  appe- 
tites are  rendered  sickly  by  disease.  Plutarch  also 


THE   RIGHTS  OF   WAR  AND   PEACE  249 

observes  that  there  are  certain  infirmities  and  disorders, 
which  naturally  infect  the  soul.  Once  for  all,  by  way  of 
conclusion  we  may  add  that  wars  undertaken  to  inflict 
punishment  may  be  suspected  of  injustice,  except  there 
be  manifest  and  enormous  aggressions,  with  other  con- 
spiring causes,  to  vindicate  nations  for  having  recourse 
to  arms. 

XLIV.  The  progress  of  the  work  has  necessarily  led  to 
the  consideration  of  offences  against  God;  the  propriety 
or  impropriety  of  punishing  which  by  force  of  arms  is  a 
fit  subject  of  inquiry. 

Admitting  the  affirmative  part  of  the  question,  we  may 
observe  that  as  in  ecclesiastical  affairs  Bishops  are  in- 
trusted with  a  Catholic,  or  general  power ;  so  kings,  besides 
the  care  of  their  own  immediate  states  and  subjects,  may 
be  regarded  as  protectors  of  the  human  race.  The  best 
argument,  on  the  negative  side  of  the  question,  against 
the  justice  of  such  wars,  is  the  sufficiency  of  the  divine 
omnipotence  to  avenge  its  own  wrongs.  Yet  the  same 
may  be  said  of  other  offences.  For  the  Deity  possesses 
sufficient  power  to  punish  them,  although  he  leaves  them 
to  the  sentence  of  human  tribunals.  Some  will  urge  and 
maintain  that  other  kinds  of  offences  are  punished  only 
in  cases,  where  others  are  uninjured  or  endangered  by  the 
commission  of  them.  On  the  other  hand,  it  may  be  said 
that  men  punish  not  only  offences,  which  directly  hurt 
others,  but  even  those,  which  affect  them  indirectly,  as 
suicide  and  other  similar  crimes. 

Although  religion  is  a  concern  between  the  soul  of  man 
and  his  Maker  alone,  its  influence  on  human  morals  is  of 
no  inconsiderable  importance.  So  that  Plato  had  reason 
to  call  it  the  bulwark  of  authority  and  law,  and  the  bond 
of  every  thing  venerable  in  social  order  and  discipline. 
Every  false  opinion  in  divine  things,  says  Plutarch,  is 
pernicious,  betraying  itself  in  the  disorders  of  the  imagi- 
nation, wherever  it  takes  root,  and  springs  up  into  action. 
So  that  Aristotle  reckons  the  care  and  support  of  religion 
the  first  of  public  concerns.  This  is  a  truth  applying  not  to 
any  particular  state,  but  to  all  governments,  and  to  human 
society  in  every  shape.  An  avowal  which  Xenophon  makes 
the  characteristic  of  a  great  and  wise  prince,  attributing 
to  Cyrus  a  declaration  of  his  firm  persuasion  that  the 
more  his  subjects  feared  God,  the  more  obedient  he  should 
find  them  to  his  laws,  and  the  more  attached  to  his  per- 
son. But  once  remove  the  motives  of  religion,  says 


250  HUGO   GROTIUS 

Tully,  and  you  destroy  faith,  the  intercourse  between  man 
and  man,  and  justice  the  most  excellent  of  all  virtues. 

The  opinions  of  Epicurus  afford  a  sufficient  proof  of 
this:  for  in  banishing-  the  providence  of  God  from  his 
system,  he  made  justice  nothing  but  an  empty  name, 
springing  from  human  conventions,  founded  on  self-inter- 
est, and  restraining  men  from  the  commission  of  crimes 
by  no  other  principle  but  that  of  fear. 

But  there  is  a  wider  sphere,  than  the  internal  welfare 
of  independent  states,  on  which  religion  operates.  In 
the  separate  society,  which  every  kingdom,  state,  or 
country  forms  within  itself,  the  place  of  religion  may 
occasionally  be  supplied  by  the  influence  and  execution 
of  municipal  laws.  But  in  all  the  transactions  of  the 
great  community  at  large,  where  civil  laws  are  silent, 
and  tribunals  give  way  to  the  decision  of  the  sword,  the 
law  of  nature  and  of  nations,  founded  upon  the  fear  of 
God,  and  obedience  to  his  will,  is  the  standard  of  right 
to  which  Kings  and  Sovereign  states  appeal;  a  viola- 
tion of  which  is  regarded  as  a  violation  of  the  divine 
law. 

XLV.  But  to  take  a  closer  view  of  the  subject,  we 
must  observe  that  true  religion,  which  is  the  same  at  all 
periods  of  time,  rests  upon  four  evident  and  universally 
acknowledged  truths.  The  first  of  which  is  the  being 
and  unity  of  God, —  the  second,  that  God  is  not  any  of 
the  things,  that  can  be  seen,  but  of  a  nature  too  sublime 
to  be  the  object  of  human  conception,  or  of  human  sight, 
—  the  third  is,  that  with  the  eye  of  his  providence  he 
regards  the  events  of  this  world,  and  regulates  them 
with  the  most  equitable  and  unerring  judgments, —  the 
fourth  is,  that  he  is  the  creator  of  all  things,  except 
himself.  And  these  four  truths  are  unfolded  and  laid 
down  in  an  equal  number  of  commandments,  the  first  of 
which  plainly  declares  the  unity  of  God  —  the  second 
forbids  any  representation,  by  painting  or  image,  to  be 
made  of  that  being,  who  is  invisible  to  mortal  eye. 
Tacitus  bears  testimony  to  the  spiritual  nature  of  the 
Jewish  religion:  for  he  says,  that  <{the  Jews  have  noth- 
ing but  a  mental  conception  of  one  God,  and  they  look 
upon  every  attempt  to  represent  him  under  the  appear- 
ance of  human  form,  as  a  profanation  of  his  heavenly 
nature. w —  From  the  third  commandment  we  deduce  his 
knowledge  of  all  human  transactions,  even  of  our  very 
thoughts;  an  omiscience  upon  which  the  obligation  and 


THE   RIGHTS   OF   WAR   AND   PEACE  251 

sanctity  of  oaths  is  founded.  For  God  is  a  witness  even 
of  the  secret  designs  of  the  heart,  so  that  every  solemn 
oath  is  an  appeal  to  his  justice  and  his  power,  for  the 
vindication  of  truth,  and  the  punishment  of  falsehood. — 
The  fourth  commandment  presents  us  with  an  account  of 
the  creation  of  the  world,  to  commemorate  which  God 
appointed  the  sabbath,  commanding  it  to  be  observed 
with  a  degree  of  reverence  above  every  other  sacred 
institution.  For  the  violation  of  any  other  rites,  such 
as  those  respecting  forbidden  meats,  was  left  to  the  dis- 
cretionary punishment  of  the  law:  but  offences  against 
the  sabbath  were  capital;  because,  considering  the  nature 
and  design  of  its  origin,  such  contempt  implied  a  dis- 
belief, that  the  world  was  created  by  God.  Now  the 
creation  of  the  world  by  God  affords  a  tacit  proof  of  his 
goodness,  wisdom,  eternity  and  power:  and  the  effect  of 
this  contemplative  knowledge  is  the  offering  of  honour, 
love,  worship  and  obedience  to  God.  So  that  Aristotle 
says  that  the  man,  who  denies  that  God  ought  to  be 
honoured,  or  parents  loved,  should  be  taught  to  renounce 
his  error,  not  by  reasoning,  but  by  punishment.  And, 
in  another  place,  he  observes  that  some  actions 
are  proper  on  certain  occasions,  but  reverence  for 
the  majesty  of  God  is  requisite  at  all  times,  and  in  all 
places. 

The  truth  of  those  contemplative  opinions  may  undoubt- 
edly be  proved  from  the  nature  of  things;  the  clearest 
of  which  proofs  is  the  evidence  of  sense,  shewing  the 
existence  of  things,  which  naturally  leads  us  to  consider 
the  time,  when  they  had  no  being. 

But  as  all  are  not  able  to  understand  these  arguments 
and  others  of  the  same  kind,  it  is  sufficient  to  observe 
that  in  all  ages  and  all  countries  of  the  world,  with  very 
few  exceptions,  these  opinions  have  found  a  general 
reception  with  those  who  were  too  plain  in  their  deal- 
ings, and  ingenuous  in  their  designs,  to  impose  upon 
others,  and  with  many,  who  had  too  much  sagacity  to 
be  deceived  themselves.  But  when  amid  such  variety  of 
laws,  customs,  and  opinions,  there  is  so  general  an  agree- 
ment upon  one  point;  that  agreement  may  be  adduced 
as  a  proof,  that  such  a  belief  owes  its  origin  to  the  primi- 
tive ages  of  the  world,  from  whence  it  has  been  derived 
to  us:  when  we  consider  too  that  it  has  never  been 
clearly  refuted,  it  is  a  sufficient  reason  to  establish  our 
faith. 


252  HUGO  GROTIUS 

XLVI.  There  is  no  excuse  therefore  for  the  rejection 
of  those  opinions,  even  in  cases,  where  there  is  no  intui- 
tive sagacity  to  discover  new  proofs,  or  to  comprehend 
old  ones:  as  there  are  so  many  guides  both  in  nature 
and  reason  to  lead  men  to  the  knowledge  of  those  truths, 
and  as  no  solid  arguments  have  ever  been  produced  to 
establish  a  contrary  belief.  But  as  human  punishments 
form  the  subject  of  our  present  inquiry,  it  is  right  to 
make  a  distinction  between  opinions  themselves,  and  the 
manner  of  deviating  from  them.  The  belief  in  a  supreme 
being,  and  in  the  controul  of  his  providence  over  human 
affairs,  is  one  of  those  universal  tenets  to  be  found  in 
all  religions,  whether  true  or  false.  And  in  reality  to 
deny  the  being  of  a  God,  and  to  deny  the  interposal  of 
his  providence  in  human  affairs,  amounts  in  its  moral 
consequences  to  the  same  thing.  And  it  is  for  this  reason 
these  two  opinions  have  been  inseparably  united  in  all 
ages,  and  among  every  civilized  people.  Consequently 
we  find,  that  in  all  well  governed  states,  wholesome  laws 
have  been  enacted  to  restrain  those,  who  disturb  those 
opinions,  which  have  always  been  regarded  as  the  chief 
support  of  social  order ;  and  all  contempt,  shewn  to  those 
opinions,  has  always  been  considered  as  contempt  shewn 
to  society  itself,  and  which  it  consequently  has  a  right 
to  punish. 

XLVII.  There  are  other  truths  not  equally  self-evi- 
dent, such  as  these,  that  there  are  not  more  Gods  than 
one;  that  no  visible  thing,  neither  the  world,  nor  the 
heavens,  nor  the  sun,  nor  the  air  is  God;  that  the  world, 
and  the  matter  of  which  it  is  formed,  have  not  existed 
from  all  eternity,  but  were  made  by  God.  So  that  we 
see  the  knowledge  of  these  truths  disfigured,  and  almost 
entirely  obliterated  among  many  nations  by  the  lapse  of 
time.  And  this  might  the  more  easily  happen,  as  there 
were  no  legal  provisions  made  to  preserve  the  purity  of 
these  truths,  which  were  not  considered  as  essential  to 
the  very  existence  of  all  religion.  The  law  indeed  given 
to  that  people,  who  were  instructed  in  the  clear  knowl- 
edge of  these  truths,  by  the  mouths  of  the  prophets,  by 
miracles  seen  with  their  own  eyes,  or  brought  to  their 
ears  by  the  reports  of  the  most  undoubted  testimony, 
that  law,  though  it  expresses  the  greatest  abhorrence  of 
the  worship  of  false  gods,  does  not  inflict  the  punish- 
ment of  death  upon  all  convicted  of  that  crime,  but  only 
in  particular  instances,  where  they  have  seduced  others 


THE   RIGHTS   OF   WAR  AND   PEACE  253 

into  idolatry, —  or  where  a  state  has  introduced  the  wor- 
ship of  unknown  Gods, — or  where  the  true  worship  of 
God,  and  obedience  to  his  laws  have  been  forsaken  for 
the  worship  of  the  stars,  which  St.  Paul  calls  serving  the 
creature  above  the  creator,  an  offence,  which  was,  for 
some  time,  punished  among  the  descendants  of  Esau. 
Those  too  who  offered  their  children  to  Moloch,  that  is, 
to  Saturn,  were  punished  with  death.  Yet  the  Canaan- 
ites,  and  the  neighbouring  nations,  who  had  long  been 
sunk  into  the  most  depraved  superstitions,  were  not  con- 
signed by  God  to  immediate  punishment,  but  were  left 
to  fill  up  the  measure  of  their  crimes.  And  there  were 
other  nations,  where,  in  the  language  of  Scripture,  God 
winked  at  the  times  of  this  ignorance.  Where  men  have 
had  no  means  of  arriving  at  the  knowledge  of  a  true 
God,  as  their  superstitions  and  errors  are  excusable,  so 
where,  in  despite  of  knowledge,  they  have  deified  Dae- 
mons, and  vices,  which  they  knew  to  be  such,  their 
superstitions  are  not  to  be  called  errors,  but  impieties. 
And  no  less  impious  is  the  supposed  homage,  that  is 
paid  to  God  with  the  blood  of  innocent  human  victims, 
and  Darius  king  of  the  Persians,  and  Gelo  king  of  Syra- 
cuse, are  commended  for  abstaining  from  such  practices. 
Plutarch  informs  us  of  some  barbarians,  who  would  have 
been  punished  by  the  Romans  for  offering  human  vic- 
tims to  the  deity,  had  they  not  pleaded  the  antiquity  of 
the  custom,  which  was  admitted  as  an  excuse,  though 
they  were  strictly  enjoined  not  to  follow  the  same  custom 
in  future. 

XLVIII.  From  the  kind  of  evidence  on  which  Chris- 
tianity rests,  it  is  plain  that  no  force  should  be  used  with 
nations  to  promote  its  acceptance.  It  is  not  merely  by 
natural  arguments  it  can  gain  assent;  for  it  has  made  an 
addition  of  many  things  to  natural  religion.  Its.evidence 
rests  upon  the  history  of  Christ's  resurrection,  and  upon 
the  miracles  performed  by  himself  and  his  Apostles.  So 
that  it  is  a  matter  of  fact  proved  by  the  most  undeniable 
evidence,  and  of  great  antiquity.  Therefore  a  doctrine 
of  this  kind  cannot  be  thoroughly  received  upon  the  first 
hearing  of  it,  without  the  secret  assistance  of  God:  an 
assistance  not  given  as  a  reward  for  the  merit  of  works ; 
so  that  wherever  it  is  withheld  or  less  copiously  bestowed ; 
it  is  done  for  reasons,  which  though  just,  are  generally 
unknown  to  us,  and  therefore  not  punishable  by  human 
judgments.  For  it  is  the  custom  in  the  sacred  writings 


254  HUGO   GROTIUS 

to  assign  the  divine  pleasure  as  the  cause  of  things  un- 
known to  us. 

There  is  another  reason  of  no  less  weight,  which  is  that 
Christ  being  the  author  of  a  new  law,  will  have  no  one 
brought  to  embrace  his  doctrine  by  the  fear  of  human 
punishments.  Nor  is  the  reason  at  all  weakened  by  the 
objection  drawn  from  the  parable  of  the  marriage-supper, 
where  it  is  said  the  messengers  are  commanded  to 
compel  the  guests  to  come  in.  For  the  term,  COMPEL, 
here  signifies  nothing  more  than  an  earnest  entreaty,  a 
sense,  in  which  it  is  used  in  other  parts  of  the  New 
Testament,  implying  an  earnest  request  made  to  any 
one. 

XLIX.  But  to  obstruct  the  teachers  of  Christianity  by 
pains  and  penalties  is  undoubtedly  contrary  to  natural 
law  and  reason :  for  the  doctrine  of  Christ,  apart  from  all 
the  corruptions  added  by  the  inventions  of  men,  contains 
nothing  hurtful,  but  every  thing  beneficial  to  society. 
The  thing  speaks  for  itself,  and  even  those  who  were 
strangers  to  the  doctrine  itself  were  obliged  to  acknowl- 
edge the  truth  of  this.  Pliny  says  that  the  Christians 
bound  themselves  by  an  oath  to  commit  neither  theft, 
nor  robbery,  nor  to  violate  their  word.  It  was  a  common 
saying  <(Caius  Seius  is  a  good  man,  but  he  is  a  Chris- 
tian. » 

Nor  indeed  can  any  danger  be  apprehended  from  the 
spreading  of  doctrines,  calculated  to  inspire  greater  sanc- 
tity of  manners,  and  the  purest  principles  of  obedience  to 
lawful  sovereigns.  Philo  has  recorded  a  beautiful  saying 
of  Augustus,  who  observed  that  the  assemblies  of  the  Jews 
were  not  Bacchanalian  revels,  or  meetings  to  disturb  the 
public  peace,  but  schools  of  virtue. 

L.  It  seems  unjust  to  persecute  with  punishments  those 
who  receive  the  law  of  Christ  as  true,  but  entertain 
doubts  or  errors  on  some  external  points,  taking  them 
in  an  ambiguous  meaning  or  different  from  the  ancient 
Christians  in  their  explanation  of  them.  A  point  which 
is  proved  by  what  has  been  said  above,  and  by  the  an- 
cient example  of  the  Jews.  For,  possessing  a  law,  which 
allowed  them  to  inflict  temporal  punishments,  they  never 
exercised  that  authority  upon  the  Sadducees,  who  denied 
the  doctrine  of  a  resurrection :  a  doctrine  of  the  greatest 
truth,  though  but  faintly  delivered  in  that  law,  and 
under  a  typical  application  of  words  and  circum- 
stances. 


THE   RIGHTS   OF  WAR   AND   PEACE  255 

But  if  there  should  be  any  weighty  error,  that  dis»- 
cerning  judges  could  easily  refute  by  an  appeal  to  sacre^ 
authority,  or  to  the  opinions  of  antiquity;  here  too  it 
would  be  necessary  to  make  allowance  for  ingrafted 
opinions,  that  have  grown  up  to  form  an  inseparable  part 
of  the  human  mind,  and  for  the  zealous  attachment  of 
every  one  to  his  own  tenets;  an  evil  which  Galen  says 
is  more  difficult  to  be  eradicated  than  any  constitutional 
disease. 


CHAPTER   XXI. 
ON  THE  COMMUNICATION  OF  PUNISHMENT. 

How  accessories  are  liable  to  punishment  —  Sovereign  Princes  or  States 
answerable  for  the  misconduct  of  their  subjects,  when  they  know  it, 
and  do  not  endeavour  to  prevent  it  —  Sovereigns  bound  not  to  protect 
offending  subjects,  but  to  deliver  them  up  or  punish  them  —  The 
rights  of  suppliants  belong  to  the  unfortunate  and  not  to  the  guilty — 
Suppliants  may  be  protected  while  the  inquiry  into  their  case  is  still 
pending — How  far  states  are  amenable  to  punishment — All  the  dif- 
ferent exceptions  stated  —  Children  not  answerable  for  the  offences 
of  parents  —  The  moral  government  of  God  in  this  respect  con- 
sidered—  Individuals  not  answerable  for  offences,  to  which  they  have 
not  given  consent  —  Heirs,  how  far  answerable  for  the  acts  of  their 
ancestors. 

I.  THE  next  topic  of  inquiry  relates  to  the  communica- 
tion of  punishment,  as  inflicted  upon  accomplices,  who,  in 
that  capacity,  cannot  be  said  to  be  punished  for  the  guilt 
of  others,  but  for  their  own.  And  from  what  has  been 
said  above  upon  the  loss  sustained  from  injury,  it  may  be 
understood  who  are  the  persons,  that  come  under  this 
description.  For  the  partnership  in  loss,  and  the  partner- 
ship in  guilt  are  regulated  by  nearly  the  same  principles. 
Yet  the  obligation  to  repair  a  loss  does  not  always  imply 
guilt,  except  where  there  has  been  any  notorious  malice, 
in  which  case  every  damage  renders  the  party,  who  has 
occasioned  it,  liable  to  make  reparation.  So  that  persons 
ordering  the  commission  of  any  wicked  or  hostile  act, 
giving  the  requisite  consent  to  it,  supplying  the  aggressor 
with  assistance,  or  protection,  or,  in  any  other  shape,  par- 
taking of  the  crime,  by  giving  counsel,  commendation,  or 
assent  to  his  act,  or  when  they  have  power  to  forbid  the 
commission  of  such  an  act,  by  forbearing  to  exercise  their 
authority,  or  by  refusing  to  afford  the  succour,  which  they 
are  bound  by  the  law  of  nature,  or  by  treaty  to  give  to 
the  injured  party,  by  not  using  with  the  offender  that 
power  of  dissuasion,  which  they  have  a  right  to  do,  or 
lastly  by  concealing  what  they  ought  to  make  known,  in 
(256) 


THE   RIGHTS  OF  WAR  AND  PEACE  257 

all  these  cases,  such  persons  are  punishable  as  accom- 
plices, if  they  are  convicted  of  that  degree  of  malice, 
which  constitutes  a  crime,  and  merits  punishment :  points 
which  have  before  been  discussed. 

II.  The  case  will  be  made  clearer  by  examples.  A 
civil  community  is  no  more  bound  than  any  other  society 
by  an  act  of  individual  members,  except  that  act  be  done 
by  its  express  consent  and  authority,  or  it  has  neglected 
to  disavow  such  a  proceeding.  Hence  it  is  formally  stip- 
ulated in  almost  all  treaties  that  no  acts  or  aggressions 
are  to  be  ascribed  to  a  state,  except  those,  which  are 
done  in  the  name  of  the  sovereign,  and  by  persons  act- 
ing expressly  under  the  authority  of  his  commission.  So 
a  father  is  not  answerable  for  the  misconduct  of  his 
children,  a  master  for  that  of  his  servants,  nor  a  ruler 
for  the  acts  of  those  under  him,  unless  there  appears  in 
any  of  these  some  connivance,  or  encouragement  in  pro- 
moting that  misconduct,  or  those  acts. 

In  the  case  of  a  sovereign's  responsibility  for  the  acts 
of  his  subjects,  there  are  two  things  to  be  considered, 
which  require  minute  inquiry,  and  mature  deliberation, 
and  those  are  the  forbearance,  and  the  encouragement 
or  protection,  which  he  has  shewn  to  their  transgres- 
sions. 

As  to  forbearance,  it  is  an  acknowledged  point,  that 
when  he  knows  of  a  delinquency,  which  he  neither  for- 
bids nor  punishes,  when  he  is  both  able  and  bound  to  do 
so,  he  becomes  an  accessory  to  the  guilt  thereof.  Cicero, 
in  his  speech  against  Piso,  says,  ftit  makes  no  great  dif- 
ference especially  in  a  consul,  whether  he  harasses  the 
government  by  moving  ruinous  laws,  and  making  mis- 
chievous speeches,  or  suffers  others  to  do  the  same.  If 
a  slave  has  committed  a  murder  with  the  knowledge  of 
his  master,  the  master  becomes  answerable  for  the  entire 
deed,  as  it  was  done  with  his  concurrence.* 

But,  as  we  have  said  before,  besides  the  knowledge  of 
a  deed,  to  constitute  a  participation  in  the  guilt,  the 
person  so  knowing  it,  must  possess  the  power  to  prevent 
it.  And  this  is  what  is  meant  by  the  legal  phrase,  that  the 
knowledge  of  a  crime,  when  it  is  ordered  to  be  punished, 
is  taken  in  the  sense  of  forbearance  or  connivance,  and 
it  is  supposed  that  the  person,  who  ought  to  have  pre- 
vented it,  did  not  do  so.  In  this  place  knowledge  implies 
a  concurrence  of  will,  and  connivance  a  concurrence  of 
design.  A  master  therefore  is  not  bound  by  the  act  of 
17 


258  HUGO   GROTIUS 

a  slave,  who  has  claimed  his  freedom,  and  done  any  thing 
in  despite  of  his  master,  because  the  knowledge  of  a 
crime  without  ability  to  prevent  it,  by  disclosure  or  some 
other  means,  cannot  be  construed  into  an  act  of  guilt. 
So  parents  are  bound  by  the  acts  of  children ;  but  only  in 
cases  where  they  have  the  children  under  their  authority. 
On  the  other  hand,  altho'  by  having  them  in  their 
power,  they  might  have  prevented  their  misconduct, 
they  will  not  be  answerable  for  it,  unless  they  had  a 
knowledge  of  it  also.  For  there  ought  to  be  a  concur- 
rence of  knowledge,  and  forbearance  or  encouragement 
to  involve  any  one  in  the  guilt  of  another's  actions;  cir- 
cumstances all  of  which  by  a  parity  of  reasoning  may  be 
applied  to  the  connection  between  sovereigns  and  sub- 
jects :  a  connection  founded  on  principles  both  of  natural 
and  civil  law. 

III.  The  matter  that  necessarily  comes  next  under  con- 
sideration is   the  case   of   those,  who   screen   delinquents 
from  punishment.     It   was   before  observed  that,  accord- 
ing to  the  law  of  nature,  no  one  could  inflict  punishment, 
but  a  person  entirely  free   from   the   guilt  of   the   crime 
which   he   was   going   to   punish.     But   since   established 
governments   were  formed,  it  has  been  a  settled  rule,  to 
leave    the    offences    of    individuals,    which    affect    their 
own  community,  to  those   states   themselves,  or  to  their 
rulers,  to  punish  or  pardon  them  at  their  discretion.     But 
they  have  not  the  same  plenary  authority,  or  discretion, 
respecting    offences,    which   affect    society    at   large,   and 
which  other  independent  states  or  their  rulers  have  a  right 
to  punish,  in  the  same  manner,  as  in  every  country  popular 
actions  are  allowed  for  certain  misdemeanors.     Much  less 
is  any  state  at  liberty  to  pass  over  in  any  of  its  subjects 
crimes   affecting  other  independent  states  or  sovereigns. 
On  which  account  any  sovereign  state  or  prince  has  a  right 
to  require   another  power  to  punish  any  of  its   subjects 
offending  in  the  above  named  respect:   a  right   essential 
to  the  dignity  and  security  of  all  governments. 

IV.  But   as  it  is  not  usual   for  one   state  to  allow  the 
armed  force  of  another  to  enter  her  territories  under  the 
pretext  of   inflicting   punishment   upon  an  offender,   it  is 
necessary  that  the  power,  in  whose  kingdom  an  offender 
resides,  should  upon  the  complaint  of  the  aggrieved  party, 
either  punish  him  itself,  or  deliver  him  up  to  the  discretion 
of  that   party.     Innumerable   instances  of  such  demands 
to  deliver  up  offenders  occur  both  in  sacred  and  profane 


THE   RIGHTS   OF   WAR  AND   PEACE  259 

history.  Thus  the  other  Israelites  required  the  Benjamites 
to  deliver  up  offenders,  Jud.  xx. — And  the  Philistines  de- 
manded of  the  Hebrews  the  surrender  of  Samson,  as  a 
criminal,  Jud.  xv. —  In  the  same  manner  the  Gauls  made 
a  demand  that  the  Fabii  should  be  surrendered  for  having 
fought  against  them.  Sylla  too,  as  Sallust  informs  us, 
urged  Bocchus  to  deliver  up  Jugurtha,  and  by  so  doing  to 
relieve  the  Romans  from  the  bitter  necessity  of  implicat- 
ing HIM  for  his  erroneous  conduct  in  the  same  guilt  with 
that  most  desperate  villain.  Yet  all  these  instances  are 
to  be  understood  not  as  strictly  binding  a  people  or  Sov- 
ereign Prince  to  the  actual  surrender  of  offenders,  but 
allowing  them  the  alternative  of  either  punishing  or  de- 
livering them  up.  For  it  was  upon  this  ground,  as  we  are 
informed,  that  the  Eleans  made  war  upon  the  Lacedae- 
monians, because  the  latter  neglected  to  punish  their  sub- 
jects, who  had  committed  aggressions  upon  that  people; 
that  is,  they  had  neither  punished  nor  delivered  them  up : 
for  the  obligation  may  be  taken  either  way,  that  being 
left  to  the  choice  of  the  aggrieved  person,  or  nation,  in 
order  to  make  the  satisfaction  the  more  complete. 

The  surrender  here  meant  is  nothing  more  than  deliv- 
ering up  a  citizen  or  subject  to  the  power  of  another 
state  to  decide  upon  his  punishment.  But  this  permis- 
sion neither  gives  nor  takes  away  any  right,  it  only  re- 
moves an  impediment  to  the  prosecution  of  a  right. 
Wherefore  if  that  other  people  make  no  use  of  the  per- 
mitted right,  the  offender,  who  has  been  delivered  up,  is 
in  such  a  situation,  that  he  either  MAY  or  may  NOT  be 
punished:  either  of  which  may  happen  in  the  case  of 
many  offences.  But  the  right  of  a  state,  as  to  the  en- 
joyment of  its  own  laws,  and  many  other  advantages,  is 
not  lost  by  any  particular  act  without  a  formal  decree 
and  judgment,  unless  in  any  way  it  has  been  previously 
enacted,  that  certain  acts,  or  certain  omissions,  shall 
amount  to  a  forfeiture  of  some  particular  rights  and 
privileges.  In  the  same  manner,  goods,  if  surrendered, 
but  not  accepted,  will  remain  the  property  of  the  former 
owner.  But  if  the  surrender  of  a  citizen  has  been  ac- 
cepted, and,  by  some  accident,  the  person  so  surrendered 
shall  afterwards  return  home,  he  will  no  longer  be  a 
citizen,  except  by  some  new  act  of  grace.  What  has 
been  said  of  punishing  or  giving  up  aggressors,  applies 
not  only  to  those,  who  always  have  been  subjects  of  the 
sovereign,  in  whose  dominions  they  are  now  found,  but 


260  HUGO   GROTIUS 

to  those  also,  who,  after  the  commission  of  a  crime,  have 
fled  to  some  place  for  refuge. 

V.  Nor  do  the  so  much  talked  of  rights  of  suppliants, 
and  the  inviolable  nature  of  asylums  at  all  weaken  the 
argument  that  has  been  advanced.  For  the  advantages 
of  such  protection  are  designed  only  for  those,  who  are 
the  victims  of  unmerited  persecution,  not  for  those  who 
have  committed  crimes  injurious  to  mankind,  and  de- 
structive to  society.  Gylippus,  the  Lacedaemonian,  as 
may  be  seen  in  the  xiii.  book  of  Diodorus  Siculus,  speak- 
ing of  the  rights  of  suppliants,  says,  that  they  were 
originally  introduced,  as  measures  of  compassion  to  the 
unfortunate,  and  not  a  screen  for  malicious  and  wanton 
offenders,  who  have  nothing  but  punishment  to  expect. 
And  a  little  after  he  says,  when  such  men,  prompted  by 
malice,  or  rapacity  have  plunged  into  evils,  they  have 
no  right  to  talk  of  misfortune  or  to  wear  the  name  of 
suppliants.  For  that  is  a  privilege  granted  by  the  laws 
of  nature  to  the  innocent,  who  are  beaten  down  by  the 
hard  and  oppressive  strokes  of  ill  fortune.  But  the  refuge 
of  compassion  is  withheld,  where  every  line  of  a  life  has 
been  marked  with  cruelty  and  injustice.  Thus  according 
to  that  law,  which  partakes  of  the  wisdom  of  its  divine 
author,  asylums  were  open  to  those  who  had  killed  any 
one  by  a  weapon  escaping  from  their  hand:  slaves  too 
were  allowed  places  of  refuge,  but  deliberate  murderers, 
or  those,  who  had  disturbed  the  peaceful  order  of  the 
state,  found  no  protection  even  from  the  altar  of  God. 
Philo,  in  explaining  this  law  says,  that  even  the  temple 
affords  no  refuge  to  the  impious. 

The  more  ancient  of  the  Greeks  acted  upon  the  same 
principle.  It  is  said  that  the  Chalcidians  refused  to  deliver 
up  Nauplius  to  the  Grecians,  and  the  reason  alleged  was 
his  having  cleared  himself  of  the  charges  made  against 
him.  There  was  among  the  Athenians  an  altar  dedicated 
to  Mercy;  it  is  mentioned  by  Cicero,  Pausanias,  Servius, 
and  also  by  Theophilus,  and  it  is  described  at  full  length 
by  Statius  in  the  xii.  book  of  his  Thebais.  The  poet  ex- 
plains to  what  description  of  men  it  afforded  shelter:  it 
was,  he  says,  to  those  who  were  driven  from  their  homes 
by  the  calamity  of  war,  or  stripped  of  their  kingdoms  by 
usurpers.  Tacitus  in  the  third  book  of  his  Annals,  and 
6oth  chapter,  reprobates  the  custom,  prevailing  in  his  time 
among  the  cities  of  Greece,  of  making  it  an  act  of  religion 
to  protect  offenders  from  the  punishment  due  to  their 


THE   RIGHTS   OF   WAR  AND   PEACE  261 

crimes.  Such  offenders  therefore  ought  either  to  be  pun- 
ished, or  delivered  up,  or,  at  least,  ordered  to  withdraw. 
Perseus  the  Macedonian  king,  clearing  himself  to  Martius 
from  the  charge  of  screening  those,  who  had  attempted 
the  life  of  Eumenes ;  said,  <(  as  soon  as  I  was  apprised  by 
you  of  their  being  in  Macedonia,  I  ordered  immediate 
search  to  be  made  for  them,  peremptorily  commanding 
their  perpetual  banishment  from  my  kingdom.* 

The  right  of  demanding  the  surrender  or  punishment 
of  criminals  that  have  fled  into  other  kingdoms,  has,  in 
most  parts  of  Europe,  during  the  present,  and  the  imme- 
diately preceding  centuries,  been  generally  exercised  in 
cases,  where  the  crimes  were  such  as  affected  the  safety 
of  the  state,  or  were  attended  with  notorious  atroc- 
ity. It  has  been  usual  to  pass  over,  with  mutual  conniv- 
ance, crimes  of  an  inferior  kind,  except  where  it  has  been 
agreed  to  the  contrary  by  express  treaty.  Nor  can  it  be 
concealed  that  where  robbers  and  pirates  have  gained  a 
truly  formidable  power,  it  has  often  been  deemed  an  act 
of  humane  policy  both  in  Sovereign  Princes,  and  States 
to  exercise  forbearance  towards  them,  rather  than  to  drive 
them  to  greater  acts  of  desperation  by  treating  them  with 
all  the  rigour,  which  they  deserve. 

VI.  If  the  act,  of  which  refugees  and  suppliants  are 
accused,  is  not  prohibited  by  the  law  of  nature  or  of 
nations,  the  matter  must  be  decided  by  the  civil  law  of 
the  country,  from  which  they  come.  This  was  a  received 
opinion  in  ancient  times,  as  we  find  from  the  language 
of  Aeschylus,  in  whose  Tragedy  of  the  Suppliants,  the 
King  of  Argos,  addressing  a  number  of  the  daughters  of 
Danaus,  on  their  coming  from  Egypt,  says,  *  If  the  sons 
of  Egypt  exercise  controul  over  you,  maintaining  that 
they  are  authorised  to  do  so  by  the  law  of  the  state,  as 
being  the  nearest  allied  by  blood,  who  can  resist  them  ? 
It  is  for  you  to  prove  that,  according  to  the  laws  of  your 
country,  they  have  no  authority  over  you.* 

VII  and  VIII.  It  has  often  been  a  celebrated  topic  of 
discussion,  whether  a  whole  community  can  be  punished 
for  misconduct.  And  this  is  the  proper  place  for  that 
inquiry. 

It  was  shewn  in  a  former  part  of  this  treatise,  that  a 
body  politic  though  it  may  seem  to  vary  by  a  succession 
of  new  members,  continues  the  same,  as  long  as  it  re- 
tains its  form.  In  which  case  it  seems  liable  to  punish- 
ment no  less  than  individuals.  On  the  other  hand  bodies 


262  HUGO    GROTIUS 

politic  seem  to  possess  many  privileges  peculiar  to  them- 
selves,  such  as  having  a  common  treasury,  a  common 
seal,  laws,  and  other  similar  advantages.  But  there  are 
some  distinctions,  which  they  particularly  derive  from 
the  INDIVIDUALS  of  which  they  are  composed.  Thus  we 
say  that  Universities  are  learned,  or  Garrisons  brave,  ac- 
cording to  the  number  of  learned  or  gallant  men,  which 
they  respectively  contain.  Merit  is  a  distinction  of  this 
kind,  as  being  a  gift  of  nature  to  individuals,  or  an  in- 
dividual acquirement,  which  no  public  body,  OF  ITSELF,  can 
have.  So  that  upon  the  death  or  departure  of  those  meri- 
torious individuals,  the  degree  of  merit,  which  any  public 
society  derived  from  their  presence,  must  become  ex- 
tinct. In  the  same  manner,  the  debt  of  punishment 
which  is  considered  as  arising  from  some  act  of  demerit, 
must  cease  with  the  debt  of  the  individual  delinquents. 
Arrian  is  justly  commended  for  censuring  the  vengeance 
retorted  upon  the  Persians  by  Alexander,  at  a  time,  when 
those,  who  had  committed  the  original  aggressions  on  the 
Greeks,  had  long  been  laid  in  their  graves.  He  passes  a 
like  sentence  upon  the  burning  of  Persepolis,  as  a  retaliation 
for  what  the  Persians  had  done  at  Athens.  Such  acts  of 
retaliation,  after  a  lapse  of  years,  have  been  vindicated  by 
some  writers,  as  an  imitation  of  the  slow,  but  unerring 
progress  of  divine  justice.  But  we  must  remember  that 
the  ways  of  God  are  not  as  our  ways,  nor  is  the  exercise 
of  his  justice  to  be  measured  by  our  counsels.  For  if 
descendents  can  claim  no  merit  for  the  actions  of  their 
FOREFATHERS,  neither  is  it  right  they  should  be  punished 
for  THEIR  transgressions.  The  consequences  of  merit 
indeed  may  be  transmitted  without  injury,  and  therefore 
without  injustice;  but  it  is  not  so  with  punishments. 

IX.  Having  thus  shewn  that  a  communication  of  pun- 
ishment is   necessarily   connected  with  a  participation  in 
guilt,  it  remains  to  consider  whether  punishment  can  be 
extended   to    those,  who    are   no    way   concerned   in  the 
crime.     In   order  to  understand  this  clearly,  and  to  pre- 
vent the  mistakes    that   may   arise   from   a  similarity  of 
expression,  where   there   is  no  similarity  of  facts,  it  will 
be  necessary  to  make  use  of  some  precautions. 

X.  In   the   first    place   there    is  a  difference  between  a 
loss    DIRECTLY    occasioned  by    any  act,  and  one  resulting 
but  INDIRECTLY    from    it.     Now  it  may  be  called  a  direct 
injury  to  deprive  any  one    of  what  peculiarly  belongs  to 
him  as  his  right.     An  indirect    injury  is  that  which  pre- 


THE   RIGHTS   OF  WAR  AND   PEACE  263 

vents  any  one  from  possessing  what  he  otherwise  would 
have  done,  by  destroying  the  condition  or  means,  which 
gave  him  such  a  right.  As  an  example,  Ulpian  says, 
<(  if  any  one  has  opened  a  well  in  his  own  ground,  by 
which  the  subterraneous  streams  of  water,  that  would 
have  passed  to  the  lands  of  another,  are  cut  off,  here  no 
fault  is  imputable  to  the  person  who  has  only  exercised 
his  own  right. >J  And  in  another  place,  he  says,  it  makes 
a  great  difference,  whether  any  one  directly  does  an 
injury,  or  is  only  indirectly  and  unintentionally  instru- 
mental in  preventing  another  from  reaping  advantages, 
which  he  would  otherwise  have  enjoyed.  And  it  is 
absurd,  says  Paulus,  another  legal  authority,  for  men  to 
be  called  rich  before  they  possess  the  means  of  being 
so.  Thus  when  the  property  of  parents  is  forfeited,  it 
is  felt  as  an  inconvenience  by  their  children;  though  it 
can  not  be  considered  as  a  direct  punishment  inflicted 
upon  them,  because  that  property  would  never  have 
been  theirs,  unless  the  parents  had  retained  it  to  their 
last  breath.  On  which  Alphenus  has  made  a  just  obser- 
vation, in  saying,  that,  by  the  punishment  of  the  father, 
children  lose  that  which  would  have  come  to  them  from 
him,  but  things,  which  they  do  not  receive  from  him, 
such  as  the  gifts  of  nature,  or  those  derived  from  any 
other  quarter,  remain  untouched.  Cicero  relates  that  in 
this  manner  the  children  of  Themistocles  were  reduced 
to  want,  nor  does  he  think  it  unjust  that  the  children  of 
Lepidus  should  share  the  same  fate.  And  he  says  that 
it  is  an  ancient  custom,  and  the  received  usage  of  all 
states,  the  hardship  of  which  nevertheless  was  greatly 
softened  by  the  laws  of  Rome  at  a  later  period.  Thus 
when  a  whole  people  is  implicated  in  the  misconduct  of 
the  majority,  which  holds  the  representative  character  of 
the  state,  and  consequently  loses  its  civil  liberties,  its 
fortifications,  and  other  privileges,  the  loss  affects  innocent 
individuals,  but  only  in  those  things,  which  they  could 
not  have  enjoyed,  except  as  belonging  to  that  com- 
munity. 

XI.  Besides,  we  must  observe,  that  the  offence  of  one 
man  may  sometimes  occasion  inconvenience  or  loss  to 
another,  and  yet  that  offence  may  not  be  considered  as 
the  immediate  cause  of  the  action,  which  is  grounded  on 
the  exercise  of  a  right.  This  may  be  explained  by  an 
example.  Thus  if  any  one  has  engaged  for  another's 
debt,  he  brings  himself  into  the  dilemma  named  in  the 


264  HUGO   GROTIUS 

ancient  proverb,  that  being  bound  for  any  one  is  the 
next  stage  to  ruin;  but  it  is  a  MAN'S  OWN  PROMISE,  and 
NOT  ANOTHER'S  HAVING  INCURRED  A  DEBT,  that  is  the  real 
cause  of  his  obligation.  For  as  a  person,  who  has  given 
security  for  a  purchaser,  is  not,  properly  speaking,  bound 
by  the  PURCHASE,  but  by  his  own  PROMISE:  so  if  any  one 
has  engaged  to  be  responsible  for  a  delinquent,  it  is  his 
own  ENGAGEMENT,  and  not  the  ACT  OF  THAT  DELINQUENT, 
which  creates  his  obligation.  And  hence  the  incon- 
venience of  that  kind  which  any  one  incurs,  must  be 
measured  not  by  the  delinquency  of  another,  but  by  his 
own  power  to  enter  into  any  such  voluntary  engagement. 
In  consequence  of  which  no  one  can  give  surety  to  suffer 
death  for  another;  because  no  one  has  such  power  over 
his  own  life,  as  to  take  it  away  himself,  or  to  be  bound 
to  forfeit  it  for  another.  Though  the  ancient  Greeks 
and  Romans  thought  otherwise,  and  therefore  they 
maintained  that  a  surety  might  be  put  to  death  for  any 
one,  as  may  be  seen  in  the  well  known  story  of  Damon 
and  Pythias,  and  hostages  were  frequently  punished  in 
this  manner. 

What  has  been  said  of  life  may  be  applied  to  the 
limbs  also,  which  no  man  has  a  right  to  part  with,  ex- 
cept for  the  preservation  of  the  whole  body.  But  if  any 
one  has  engaged  to  suffer  banishment,  to  submit  to  a 
pecuniary  fine,  or  any  other  means  of  satisfying  justice, 
any  thing  he  suffers  on  this  account  will  not,  strictly 
speaking,  be  considered  as  a  PERSONAL  punishment,  but 
as  the  performance  of  an  agreement. 

Something  like  this  occurs  in  the  right,  which  any  one 
possesses  dependent  on  another's  will,  both  with  respect 
to  the  right  of  individuals  to  private  property,  and  to  the 
more  extensive  right  to  demesnes  possessed  by  a  state. 
For  if  any  one  is  deprived  of  such  a  thing  owing  to 
another's  fault,  here  the  executive  power  depriving  that 
person,  is  not  inflicting  a  punishment  on  HIM,  but  only 
exercising  a  prior  right. 

XII.  and  XIII.  Having  laid  down  these  distinctions,  we 
may  observe  that  it  is  impossible  that  an  innocent  person 
should  suffer  for  another's  crime.  This  does  not  proceed 
from  the  reasons  given  by  Paulus,  who  maintains  that 
punishment  is  designed  for  the  reformation  of  the  offender. 
For  it  seems  possible  that  an  example  may  be  made,  ex- 
tending beyond  the  person  of  the  criminal  himself, 
when  it  affects,  in  its  consequences,  those,  who  are  nearly 


THE   RIGHTS  OP  WAR  AND   PEACE  265 

related  to  him.  So  that  it  is  not  for  the  sake  of  example 
only  that  punishment  is  inflicted,  but  because  the  obli- 
gation thereto  arises  from  the  demerit  of  the  offending 
party.  Now  every  demerit  must  be  of  a  personal  nature, 
as  it  proceeds  from  a  man's  own  will,  over  which  he  is 
supposed  to  exercise  a  perfect  controul. 

XIV.  In  the  law  given  to  the  Hebrews,  God  threatens 
to  avenge  the  impiety  of  fathers  upon  their  children.  But 
he  has  sovereign  dominion  over  our  lives  and  substance, 
as  being  his  gift,  which  he  may  take  away  from  any  one, 
whenever  he  pleases,  without  assigning  his  reasons. 
Therefore  if  he  thinks  proper  to  take  away  by  a  premature 
or  violent  death  the  children  of  Achan,  Saul,  Jeroboam 
or  Ahab,  he  is  exercising  over  them  the  right  of  sover- 
eignty, as  well  as  that  of  punishment;  imposing  by  that 
awful  example  the  more  severe  penalty  upon  the  parents. 
For  if  they  survive  their  children,  which  was  what  the 
divine  law  had  most  in  view,  and  therefore  did  not  extend 
these  threats  beyond  the  time  of  great  grand-children,  a 
period  to  which  the  age  of  man  might  reach,  it  is  cer- 
tain that  parents  would  be  severely  punished  by  such  a 
sight,  the  most  afflicting  of  any  they  could  witness.  Or 
if  they  should  not  survive  such  an  event,  to  die  under 
such  an  apprehension  would  be  a  great  calamity. 

But  it  is  proper  to  remark  that  examples  like  those  are 
never  employed  by  God,  except  against  crimes  affecting 
his  divine  Majesty,  as  false  worship,  perjury  or  sacrilege. 
Indeed  those  threats  of  divine  vengeance  are  not  always 
enforced ;  especially  where  any  extraordinary  virtue  shines 
in  the  characters  and  conduct  of  the  children :  as  may  be 
seen  in  the  xviii.  chapter  of  the  prophesy  of  Ezekiel. 
Plutarch  has  discussed  this  topic  with  great  eloquence  in 
his  book  on  the  remote  vengeance  of  God. 

As  the  Gospel  so  clearly  unfolds  the  future  punishments 
of  the  wicked,  all  the  threats  contained  in  that  new 
covenant  terminate  in  the  persons  of  the  offenders  them- 
selves. But  the  ways  of  providence  in  these  respects  are 
not  the  rule  which  men  can  follow.  For  God,  even 
without  any  reference  to  crime,  is  the  sovereign  lord  and 
disposer  of  human  life,  a  commission  which  man  is  only 
allowed  to  execute  against  the  perpetrators  of  certain 
crimes.  Wherefore  as  that  same  divine  law  forbids 
parents  to  be  put  to  death  for  the  offences  of  children, 
so  it  exempts  children  from  the  same  punishment  for  the 
actions  of  their  fathers:  a  lenity  which  is  greatly  com- 


266  HUGO   GROTIUS 

mended  by  Josephus  and  Philo.  The  same  commendation 
is  bestowed  by  Isocrates  upon  the  laws  of  Egypt;  and 
by  Dionysius  of  Halicarnassus  upon  those  of  Rome. 

XV.  But  if  it  is  unjust  in   human  laws   to  punish   the 
misconduct  of  parents   in  the   persons    of  their   children, 
how  much  more  severe  was  the  law  of  the  Persians  and 
Macedonians  extending  the   penalties   for   crimes   against 
the  state   to  every   branch  of  the  offender's    relatives,  in 
the  most    remote   degree,   a  law    surpassing  all  others  in 
rigour  ? 

XVI.  XVII.  and  XVIII.  What  has  been  said  respecting 
the   punishment    of    children    for   the    offences    of    their 
fathers   or  forefathers,    may   be   applied    to  the    relation 
subsisting  between  sovereigns   and  subjects.     For  it  is  a 
relation    springing  from   the    contract    of  society,    which 
makes  the  sovereign  the  essential  head,    life  and   soul  of 
that  body,  in  which  his    people   form  the   members.     As 
the  civil  community  therefore  with  its  sovereign  or  head 
forms  but  one  body,  there  can  be  no  separation  of  inter- 
ests, but   what  affects    one    part    must  be    prejudicial  or 
serviceable  to  the  whole. 

XIX.  Why  should  an  heir,  it  has  been  sometimes  asked, 
be  bound   by  other    debts  of   his   ancester,    and  not   feel 
the  effects  of  his    punishment  for    misconduct?  to  which 
answer  may  be  given,  that  the  heir  represents  the  person 
of  the  deceased  not  in  his  merits  or  demerits,  which  are 
purely  personal,  but   in  his   property;  an    artificial   mode 
of    preserving     unbroken    the    chain    of    succession    and 
descent. 

XX.  And  hence    it  follows,  that  if  in   addition    to  the 
demerit  of   an    offence,    any  new    grounds   of  obligation 
should   arise  connected  with  the   punishment,  they  must 
be   discharged    not   properly  as  a   punishment,    but  as  a 
debt.     Thus    the    heir    will  be    liable    to  pay    the    costs 
awarded  by    a  judgment  after  a   contested  suit,  which  is 
considered  in  the  light  of  a  contract. 


CHAPTER    XXII. 
ON    THE   UNJUST   CAUSES   OF   WAR. 

Differences  between  real  and  colourable  motives — War  atrocious  with- 
out either  of  these  motives  —  Wars  of  plunder,  under  the  most 
plausible  pretexts,  not  justifiable  —  Causes  apparently,  but  not  really 
just — Unnecessary  advantage  —  Desire  of  a  better  soil  —  Discovery 
of  things  belonging  to  others  —  Incapacity  of  the  original  owners — 
War  not  always  justifiable  under  the  pretext  of  asserting  liberty  — 
Or  of  imposing  a  beneficial  government  upon  a  people  against 
their  will — Emperor's  pretensions  to  universal  empire  refuted  —  Pre- 
tensions of  the  Church —  Imperfect  obligations  —  Difference  between 
wars  originally  unjust  and  those  afterwards  becoming  so. 

I.  IN  a  former  part  of  this  work,  where  the  justice  of 
war  was  discussed,  it  was  observed  that  some  wars  were 
founded  upon  real  motives  and  others  only  upon  colour- 
able pretexts.     This  distinction  was  first  noticed  by  Po- 
lybius,  who    calls    the    pretexts,  xpo+a.ffst's,  and    the    real 
causes,  dtrta?.      Thus  Alexander  made  war  upon   Darius, 
under  the  pretence  of  avenging  the  former  wrongs  done 
by  the  Persians  to  the  Greeks.     But   the   real   motive  of 
that  bold  and  enterprising  hero,  was  the  easy  acquisition 
of  wealth  and  dominion,  which  the  expeditions  of  Xeno- 
phon  and  Agesilaus  had  opened  to  his  view. 

In  the  same  manner,  a  dispute  about  Sagnntum  fur- 
nished the  Carthaginians  with  COLOURABLE  MOTIVES  for 
the  second  Punic  war,  but,  in  REALITY,  they  could  not 
brook  the  indignity  of  having  consented  to  a  treaty, 
which  the  Romans  had  extorted  from  them  at  an  unfa- 
vourable moment;  and  more  especially  as  their  spirits 
were  revived  by  their  recent  successes  in  Spain.  The 
real  causes  assigned  by  Thucydides  for  the  Peloponne- 
sian  war,  were  the  jealousies  entertained  by  the  Lacedae- 
monians 'of  the  then  growing  power  of  the  Athenians, 
though  the  quarrels  of  the  Corcyreans,  Potidaens,  and 
other  secondary  states  were  made  the  ostensible  reasons. 

II.  There  are  some   who  have   neither  ostensible   rea- 
sons, nor  just  causes  to  plead  for  their  hostilities,  in  which, 
as  Tacitus  says,  they  engage  from  the  pure   love   of  en- 
terprise and   danger.     A   disposition    to    which    Aristotle 

(267) 


268  HUGO  GROTIUS 

gives  the  name  of  ferocity.  And  in  the  last  book  of  his 
Nicomachian  Ethics,  he  calls  it  a  bloody  cruelty  to  con- 
vert friends  into  enemies,  whom  you  may  slaughter. 

III.  Though  most  powers,  when  engaging  in  war,    are 
desirous  to  colour  over  their  real  motives  with  justifiable 
pretexts,  yet  some,  totally  disregarding  such  methods  of 
vindication,  seem  able  to  give  no  better  reason  for  their 
conduct,  than  what  is  told  by  the  Roman  Lawyers   of  a 
robber,  who  being  asked,  what  right  he  had  to  a  thing, 
which  he  had  seized,  replied,  it  was  his  own,  because  he 
had  taken  it  into  his  possession  ?     Aristotle  in   the   third 
book  of  his  Rhetoric,  speaking  of  the  promoters  of  war, 
asks,  if  it  is  not  unjust  for  a  neighbouring  people  to  be 
enslaved,  and  if  those  promoters  have  no  regard   to  the 
rights  of  unoffending  nations  ?     Cicero,  in  the  first  book 
of  his  Offices,  speaks  in  the  same  strain,  and  calls   <(the 
courage,  which  is  conspicuous  in  danger  and  enterprise, 
if  devoid  of  justice,  absolutely  undeserving  of  the   name 
of  valour.     It  should   rather  be   considered   as    a   brutal 
fierceness  outraging  every  principle  of  humanity.* 

IV.  Others  make  use  of  pretexts,  which  though  plausi- 
ble at  first  sight,  will  not  bear  the  examination  and  test 
of  moral  rectitude,  and,  when  stripped  of  their  disguise, 
such  pretexts  will  be   found   fraught  with    injustice.     In 
such  hostilities,  says  Livy    it  is  not  a  trial  of  right,    but 
some  object  of  secret  and  unruly  ambition,  which  acts  as 
the  chief  spring.     Most  powers,  it   is    said    by    Plutarch, 
employ  the   relative    situations  of  peace   and   war,    as    a 
current  specie,  for  the  purchase  of  whatever  they   deem 
expedient. 

By  having  before  examined  and  established  the  prin- 
ciples of  just  and  necessary  war,  we  may  form  a  better 
idea  of  what  goes  to  constitute  the  injustice  of  the  same. 
As  the  nature  of  things  is  best  seen  by  contrast,  and  we 
judge  of  what  is  crooked  by  comparing  it  with  what  is 
straight.  But  for  the  sake  of  perspicuity,  it  will  be 
necessary  to  treat  upon  the  leading  points. 

It  was  shewn  above  that  apprehensions  from  a  neigh- 
bouring power  are  not  a  sufficient  ground  for  war.  For 
to  authorize  hostilities  as  a  defensive  measure,  they  must 
arise  from  the  necessity,  which  just  apprehensions  create ; 
apprehensions  not  only  of  the  power,  but  of  the  inten- 
tions of  a  formidable  state,  and  such  apprehensions  as 
amount  to  a  moral  certainty.  For  which  reason  the  opinion 
of  those  is  by  no  means  to  be  approved  of,  who  lay  down  as  a 


THE  RIGHTS   OF  WAR  AND   PEACE  269 

just  ground  of  war,  the  construction  of  fortifications  in  a 
neighbouring  country,  with  whom  there  is  no  existing  treaty 
to  prohibit  such  constructions,  or  the  securing  of  a  strong 
hold,  which  may  at  some  future  period  prove  a  means  of 
annoyance.  For  as  a  guard  against  such  apprehensions, 
every  power  may  construct,  in  its  own  territory,  strong 
works,  and  other  military  securities  of  the  same  kind, 
without  having  recourse  to  actual  war.  One  cannot 
but  admire  the  character,  which  Tacitus  has  drawn  of 
the  Chauci,  a  noble  and  high-spirited  people  of  Germany, 
(<  who,  he  says,  were  desirous  of  maintaining  their  great- 
ness by  justice,  rather  than  by  acts  of  ungovernable 
rapacity  and  ambition  —  provoking  no  wars,  invading  no 
countries,  spoiling  no  neighbours  to  aggrandize  themselves, 
— yet,  when  necessity  prompted,  able  to  raise  men  with 
arms  in  their  hands  at  a  moment's  warning  —  a  great 
population  with  a  numerous  breed  of  horses  to  form  a 
well  mounted  cavalry  —  and,  with  all  these  advantages, 
Upholding  their  reputation  in  the  midst  of  peace.* 

VI.*  Nor  can  the  advantage  to  be  gained  by  a  war  be 
ever  pleaded  as  a  motive  of  equal  weight  and  justice 
with  necessity. 

VII.  and  VIII.  Neither  can  the  desire  of  emigrating  to  a 
more  favourable  soil  and  climate  justify  an  attack  upon  a 
neighbouring  power.  This,  as  we  are  informed  by  Tacitus, 
was  a  frequent  cause  of  war  among  the  ancient  Germans. 

IX.  There  is  no  less  injustice  in  setting  up  claims,  un- 
der   the   pretence    of    newly  discovered    titles,  to  what 
belongs  to  another. 

Neither  can  the  wickedness,  and  impiety,  nor  any  other 
incapacity  of  the  original  owner  justify  such  a  claim.  For 
the  title  and  right  by  discovery  can  apply  only  to  countries 
and  places,  that  have  no  owner. 

X.  Neither   moral   nor  religious  virtue,   nor  any  intel- 
lectual   excellence    is   requisite    to  form    a   good   title  to 
property.     Only  where  a  race  of  men   is   so   destitute  of 
reason  as  to  be  incapable  of  exercising  any  act  of  owner- 
ship,  they  can   hold    no   property,    nor  will   the   law  of 
charity  require  that  they  should  have  more  than  the  nec- 
essaries of  life.     For  the  rules  of  the  law  of  nations  can 
only  be  applied  to  those,  who  are  capable  of  political  or 
commercial  intercourse :  but  not  to  a  people  entirely  desti- 
tute of  reason,  though  it  is  a  matter  of  just  doubt,  whether 
any  such  is  to  be  found. 

*  Section  V  of  the  original  is  omitted  in  the  translation. — TRANSLATOR. 


27o  HUGO   GROTIUS 

It  was  an  absurdity  therefore  in  the  Greeks  to  suppose, 
that  difference  of  manners,  or  inferiority  of  intellect  made 
those,  whom  they  were  pleased  to  call  barbarians,  their 
natural  enemies.  But  as  to  atrocious  crimes  striking  at 
the  very  root  and  existence  of  society,  the  forfeiture  of 
property  ensuing  from  thence  is  a  question  of  a  different 
nature,  belonging  to  punishments,  under  the  head  of  which 
it  was  discussed. 

XI.  But  neither  the   independence  of  individuals,  nor 
that  of  states,  is  a  motive   that   can    at   all  times  justify 
recourse  to  arms,  as  if  all  persons  INDISCRIMINATELY  had 
a  natural  right  to  do  so.     For  where   liberty  is    said   to 
be  a  natural  right   belonging   to  all   men  and   states,  by 
that  expression  is  understood  a  right  of  nature,  anteced- 
ent to  every  human  obligation   or  contract.     But  in  that 
case,  liberty  is  spoken  of  in   a   negative   sense,  and   not 
by   way   of   contrast    to    independence,    the    meaning   of 
which  is,  that  no  one    is  by  the   law  of  nature   doomed 
to  servitude,  though  he  is  not   forbidden  by  that  law  to 
enter  into  such  a  condition.     For   in   this   sense   no   one 
can  be  called  free,  if  nature  leaves  him  not  the  privilege 
of  chusing   his    own    condition:    as   Albutius   pertinently 
remarks,    "the    terms,    freedom    and    servitude    are    not 
founded  in  the  principles  of  nature,  but  are  names  sub- 
sequently applied  to  men  according  to  the  dispositions  of 
fortune."     And  Aristotle   defines  the  relations  of  master 
and   servant   to   be    the    result    of    political    and   not   of 
natural  appointment.     Whenever  therefore  the  condition 
of  servitude,   either  personal  or  political,  subsists,  from 
lawful  causes,  men  should  be  contented  with  that  state, 
according  to  the  injunction  of  the   Apostle,   <(Art  thou 
called,  being  a  servant,  let  not  that  be  an  anxious  con- 
cern ? }> 

XII.  And   there  is   equal   injustice  in  the  desire  of  re- 
ducing, by  force  of  arms,  any  people  to  a  state  of  servi- 
tude,   under  the  pretext  of  its  being  the  condition   for 
which  they   are   best  qualified  by  nature.      It  does  not 
follow   that,  because  any   one   is   fitted   for  a  particular 
condition,    another  has   a   right   to  impose  it   upon  him. 
For  every  reasonable   creature   ought   to  be   left  free  in 
the  choice  of  what  may  be  deemed  useful  or  prejudicial 
to  'him,  provided  another  has  no  just  right  to  a  controul 
over  him. 

The  case  of  children  has  no  connection  with  the  ques- 
tion, as  they  are  necessarily  under  the  discipline  of  others. 


THE   RIGHTS   OF  WAR  AND   PEACE  271 

XIII.  It  would  scarce  have  been  necessary  to  refute  the 
foolish  opinion  of  some,  who  have  ascribed  to  the  Roman 
Emperors  dominion  over   the  most  remote  and  unknown 
nations,  if    Bartolus,  deemed   a  lawyer  of  the   first  emi- 
nence, had  not  pronounced  it   heresy  to  deny  those  pre- 
tensions.    This  opinion   has   been  built  upon  the  Roman 
Emperor's  some   times   having  styled  himself   Sovereign 
of  the  whole  world;  a  term  which  it  was  not  unusual  for 
many  people  to  apply  to  their  own  country.     Thus  in  the 
scriptures  we  find   Judea  frequently  called  the  whole  in- 
habited earth ;  therefore  when  the  Jews,  in  their  proverbial 
expression,    called   Jerusalem   the    centre    of    the   world, 
nothing  more  is  to  be  implied   than   that  it  was  situated 
in  the  middle  of  Judea. 

As  to  the  argument  in  favor  of  universal  dominion  from 
its  being  so  beneficial  to  mankind,  it  may  be  observed 
that  all  its  advantages  are  counterbalanced  by  still  greater 
disadvantages.  For  as  a  ship  may  be  built  too  large  to 
be  conveniently  managed,  so  an  empire  may  be  too  ex- 
tensive in  population  and  territory  to  be  directed  and 
governed  by  one  head.  But  granting  the  expediency  of 
universal  empire,  that  expediency  can  not  give  such  a 
right,  as  can  be  acquired  only  by  treaty  or  conquest. 
There  were  many  places  formerly  belonging  to  the  Roman 
Empire,  over  which  the  Emperor  has  at  present  no  con- 
troul.  For  war,  treaty,  or  cession  have  made  many 
changes,  by  which  the  rights  of  territory  have  passed  to 
other  states  or  sovereign  princes,  and  the  standards  of 
different  communities,  whether  kingdoms  or  common- 
wealths, now  wave  in  places,  which  the  Roman  Eagle 
once  overshadowed  with  his  wings.  These  are  losses  and 
changes,  that  have  been  experienced  by  other  powers  no 
less  than  that,  which  was  once  mistress  of  the  world. 

XIV.  But  there  have  been  some,  who  have  asserted  the 
rights  of  the   church   over  unknown  parts  of  the  world, 
though  the  Apostle  Paul  himself  has  expressly  said  that 
Christians  were  not  to  judge  those  who  were  without  the 
pale  of  their  own  community.     And   though  the  right  of 
judging,  which  belonged  to  the  Apostles,  might  in  some 
cases  apply  to  worldly  concerns,  yet  in  its  general  nature 
it  was  of    a    celestial  rather    than    an    earthly  kind — a 
judgment   not  exercised  by  fire   and   sword,  but   by  the 
word  of  God,  proposed   to   all   men  and  adapted  to  their 
peculiar   circumstances  —  a   judgment    exercised    by   dis- 
playing or   withholding  the   seals  of  divine  grace,  as  it 


272  HUGO  GROTIUS 

might  be  most  expedient — lastly,  it  was  a  judgment  ex- 
ercised in  supernatural  punishments;  in  punishments 
proceeding  from  God,  like  the  punishments  of  Ananias, 
Elymas,  Hymenaeus,  and  others. 

Christ  himself,  the  spring,  from  whence  all  the  power 
of  the  church  was  derived,  and  whose  life  is  the  model 
for  the  church  to  follow,  said,  his  kingdom  was  not  of 
this  world,  that  is,  was  not  of  the  same  nature,  with 
other  kingdoms,  otherwise,  like  the  rest  of  sovereigns,  he 
would  have  maintained  his  authority  by  the  power  of  the 
sword.  For  if  he  had  pleased  to  call  up  the  aid  of  Legions ; 
he  would  have  called  up  hosts  of  Angels  and  not  of 
men.  And  every  exercise  of  his  right  was  performed  by 
the  influence  of  divine,  and  not  of  human  power;  even 
when  he  drove  the  sellers  out  of  the  temple.  For  the 
ROD  was  the  EMBLEM  and  not  the  INSTRUMENT  of  divine 
wrath,  as  UNCTION  was  once  a  SIGN  of  healing,  and  not 
the  HEALING  POWER  ITSELF.  St.  Augustin  on  the  xviii 
Chapter  of  St.  John,  and  36  ver.  invites  Sovereign  Princes 
into  this  kingdom,  in  these  terms,  <(  Hear,  O  Jews,  and 
Gentiles,  hear,  O  earthly  Sovereigns,  I  will  not  obstruct 
your  authority,  for  my  kingdom  is  not  of  this  world. 
Be  not  alarmed,  like  Herod,  who  trembled,  when  he 
heard  that  Christ  was  born,  and  slew  so  many  innocent 
children,  hoping  to  include  the  Saviour  in  that  calamity. 
His  fear  shewed  itself  in  cruel  wrath.  But  my  kingdom, 
says  Christ,  is  not  of  this  world.  Therefore  enter  this 
kingdom  without  fear.  Come  with  faith,  and  provoke 
not  the  king  to  anger  by  your  delay." 

XV.  There    is   a   caution    too    necessary    to    be    given, 
against  drawing  too  close  a  parallel  between  ancient  and 
modern  times.     For  it   is   but   seldom   that   any  one    can 
adduce    a   case   exactly  conformable   to   his   own  circum- 
stances.    To   draw  such  pretexts   from  the  interpretation 
of  prophecy  is  the  highest  presumption.     For  no  prophecy 
that  is   yet  to  be  fulfilled   can   be  unfolded  without  the 
aid  of  a  prophetic  spirit.     The  times  even  of  events,  that 
are  certain,  may  escape  our  notice.     Nor  is  it  every  pre- 
diction, unless   it  be  accompanied   with  an   express  com- 
mand   from    God,    that    can    justify    recourse    to    arms: 
sometimes   indeed   God   brings   his  predicted   designs   to 
their  issue  by  the  means  of  wicked  instruments. 

XVI.  As  the  imperfect  obligations  of  charity,  and  other 
virtues  of  the  same  kind  are  not  cognizable  in  a  court  of 
justice,  so  neither  can  the  performance  of  them  be  com- 


THE   RIGHTS   OF   WAR   AND   PEACE  273 

pelled  by  force  of  arms.  For  it  is  not  the  moral  nature 
of  a  duty  that  can  enforce  its  fulfillment,  but  there  must 
be  some  legal  right  in  one  of  the  parties  to  exact  the 
obligation.  For  the  moral  obligation  receives  an  addi- 
tional weight  from  such  a  right.  This  obligation  there- 
fore must  be  united  to  the  former  to  give  a  war  the 
character  of  a  just  war.  Thus  a  person  who  has  con- 
ferred a  favour,  has  not,  strictly  speaking,  a  RIGHT  to 
demand  a  return,  for  that  would  be  converting  an  act  of 
kindness  into  a  contract. 

XVII.  It  is  necessary  to  observe  that  a  war  may  be 
just  in  its  origin,  and  yet  the  intentions  of  its  authors 
may  become  unjust  in  the  course  of  its  prosecution.  For 
some  other  motive,  not  unlawful  IN  ITSELF,  may  actuate 
them  more  powerfully  than  the  original  right,  for  the 
attainment  of  which  the  war  was  begun.  It  is  laudable, 
for  instance,  to  maintain  national  honour ;  it  is  laudable  to 
pursue  a  public  or  a  private  interest,  and  yet  those  ob- 
jects may  not  form  the  justifiable  grounds  of  the  war  in 
question. 

A  war  may  gradually  change  its  nature  and  its  object 
from  the  prosecution  of  a  right  to  the  desire  of  second- 
ing or  supporting  the  aggrandizement  of  some  other 
power.  But  such  motives,  though  blamable,  when  even 
connected  with  a  just  war,  do  not  render  the  war  ITSELF 

unjust,  nor  invalidate  its  conquests. 
18 


CHAPTER   XXIII. 
ON  DOUBTFUL  CAUSES. 

Origin  of  moral  doubts  —  The  dictates  of  conscience,  though  erroneous, 
not  to  be  violated  —  Opposite  opinions  supported  by  argument,  or  by 
authority  —  In  doubtful  and  important  matters  the  safer  side  of  the 
question  to  be  followed  —  In  such  cases  it  is  right  to  abstain  from 
war  —  Disputes  settled  by  conference  or  arbitration  —  Christian 
duties — Whether  single  combat  is  allowable  in  order  to  avoid  war 
—  In  cases  of  equal  doubt  the  claims  of  the  present  possessor  to 
be  preferred — Where  neither  party  is  in  possession,  claims  to  be 
divided  —  Whether  a  war  can  be  just  on  both  sides,  explained  by 
a  distinction. 

I.  THERE  is  much  truth  in  Aristotle's  observation   that 
moral  reasonings   can   never  amount  to  the  certainty  of 
mathematical    demonstration.      Because   in  mathematical 
reasoning,  all  the  figures  are  considered  in  the   abstract, 
purely  by  themselves,  and  without  relation  to  the  circum- 
stances of  time  or  place,  so  that  there  is  nothing  to  warp 
the  judgment   from   the   object   immediately  under  con- 
sideration.     Besides  the  figures  in  general  form  a  direct 
contrast  to  each  other.      Thus,  for  instance,  there  is  no 
intermediate  line  between  a  straight  line  and  a  curve. 

But  it  is  not  so  in  morals,  where  the  least  circumstances 
vary  the  subject,  and  admit  a  latitude  of  interpretation, 
settling  the  points  of  truth  and  justice  between  two 
extremes.  So  that  between  what  is  right  and  what  is 
unlawful  there  is  a  middle  space,  where  it  is  easy  to  in- 
cline to  the  one  side,  or  to  the  other.  This  occasions  an 
ambiguity  somewhat  like  the  difficulty  of  deciding  the 
precise  moment,  where  the  twilight  begins,  and  where  it 
ends.  From  hence  Aristotle  concludes  that  it  is  some- 
times difficult  to  determine,  between  two  extremes,  what 
line  of  conduct  ought  to  be  chosen  or  rejected. 

II.  But  it  must  be  laid  down  as  a  necessary  principle,  that 
although  an  action  may  in  reality  be  just,  yet  if  the  party 
doing  it,  after  weighing  every  circumstance,  cannot  recon- 
cile the  act  to  his   conscience,  he  incurs   some  degree  of 
guilt.     «  For  whatever  is  not  of  faith,  says  the  Apostle,  is 
sin ; w  where,  by  the  term  faith  he  means  a  deliberate  judg- 
ment   of   the    mind.     For    God    has    given    conscience    a 

(274) 


THE   RIGHTS   OF   WAR  AND   PEACE  275 

judicial  power  to  be  the  sovereign  guide  of  human  actions, 
by  despising  whose  admonitions  the  mind  is  stupified  into 
brutal  hardness.  For  it  often  happens  that  judgment 
can  point  out  nothing  certain,  but  hesitates;  and  when 
such  doubts  and  hesitations  cannot  satisfactorily  be 
cleared  up,  the  rule  of  Cicero  is  a  safe  one  to  follow,  who 
says,  that  it  is  an  excellent  injunction,  which  forbids  us 
to  do  a  thing  of  the  rectitude  or  impropriety  of  which  we 
entertain  a  doubt. 

But  this  rule  cannot  be  applied,  where  of  two  things, 
in  the  choice  of  which  there  is  equal  doubt,  the  one  must 
be  done,  in  which  case  that  must  be  selected,  which  seems 
to  be  the  least  unjust.  For  on  all  occasions,  where  a 
choice  cannot  be  avoided,  the  less  of  two  evils  assumes 
the  appearance  of  a  virtue. 

III.  But  in  doubtful  cases,  after  examination,  the  mind 
seldom    remains   neuter,  but  inclines  to  one  side,   or  the 
other,  persuaded  either  by  the  merits  of  the  case>  or  by 
respect  for  the  judgment  of  those,  who  have  delivered  an 
opinion  upon  the  question.      Now  the  merits  of  the  case 
are  derived  either  from  the   causes,   the  effects,  or  other 
concomitant  circumstances. 

IV.  To  apprehend  such   distinctions    properly  >  practice 
and  penetration  are  necessary,   and  where  men  have  not 
in  themselves  a  capacity  for  the  active  exercise  of  judg- 
ment  it   behoves    them  to    follow  the  maxims  of  others, 
who   are   distinguished   by  their  wisdom  and  experience. 
For,  in  the  opinion  of  Aristotle,  those  things  are  probably 
just,  or  true,  which  seem  so  to  all,  or  to  the  greater  part 
of  men  of  worth.     And    this  is  the    method   of   judging 
pursued  by  Sovereign  Princes,  whose  engagements  in  the 
affairs  of  life  allow  them  but  little  leisure  for  study  and 
deliberation      Thus  the  ancient  Romans  never  undertook 
wars,  till  they  had  consulted  the  sacred  college,  established 
for  that  purpose,  and  the  Christian  Emperors  scarcely  ever 
did  so  without  advising  with  the  Bishops,  in  order  to  be 
apprized  of  any  thing  therein  that  might  affect  religion. 

V.  It  may  happen  in  many   disputed  points,  that  the 
intrinsic  merits  of  the  case,  or  the  opinions  of  the  learned, 
are  equal  on  both  sides.    When  that  happens,  if  the  mat- 
ters in  discussion  are   of  no  great  importance,  there  is 
nothing  to  blame   in   the  person,  that  makes  his  choice 
either  way.     But  in  matters  of  moment,  where  the  lives 
of  men   are  at  stake,  the  decision  should  incline  to  the 
safer  side,  according  to  the  proverbial  maxim,  which  pro- 


276  HUGO   GROTIUS 

nounces  it  better  to  acquit  the  guilty  than  to   condemn 
the  innocent. 

VI.  War  then  being  an  object  of  such  weighty  magni- 
tude, in  which  the   innocent  must  often  be  involved  in 
the   sufferings   of  the  guilty,  between  wavering  opinions 
the  balance  should  incline  in  favour  of  peace. 

There  are  three  methods,  by  which  independent  nations 
may  settle  their  disputed  rights  without  coming  to  the 
decision  of  the  sword. 

VII.  The  first  method  is  that  of  conference.     For,   in 
the  words  of  Cicero,  <(  there  being  two  methods  of  decid- 
ing quarrels,    the   one    by   discussion   and  the   other  by 
force,  the   former,  a  peculiar   characteristic  of  man,  and 
the  latter,  of  the  brute  creation:  when  the  first  of  these 
methods  fails,  men  are  obliged  to  have   recourse  to  the 
latter.*      Mardonius,    in   the   Polyhymnia    of    Herodotus, 
blames  the  Grecians,  who,  being  united  in  one  language, 
might   settle   their   quarrels   by  messengers  of  peace,  by 
heralds,  and  negotiations,  rather  than  by  wa'r. 

VIII.  The  other  method  is  that  of  compromise,  which 
takes  place  between  those,  who  have  no  common   judge. 
Among  innumerable  instances  of  this  kind  in  ancient  his- 
tory,   we    may    select    that    given   by   Xenophon  in  his 
account  of  Cyrus,  where  that  prince  takes  the  king  of  the 
Indians  for  arbitrator  between  himself   and  the  king  of 
Assyria.     The  Carthaginians  in  their  disputes  with  Masi- 
nissa  prefer  a  settlement  of  this  kind  before  a  decision  of 
war.     Livy  too  informs  us  that  the    Romans  themselves, 
in  a  dispute  with  the    Samnites,  made  an   appeal   to  the 
common  allies  of  both. 

The  office  of  deciding  wars  and  putting  an  end  to  the 
contentions  of  armies  was  assigned,  according  to  Strabo, 
to  the  Druids  of  the  Gauls,  and  upon  the  testimony  of 
the  same  writer,  it  formed  a  part  of  the  priestly  func- 
tions among  the  Iberians. 

Surely  then  it  is  a  mode  of  terminating  their  disputes, 
balancing  their  powers,  and  settling  their  pretensions 
worthy  to  be  adopted  by  Christian  Kings  and  States. 
For  if,  in  order  to  avoid  trials  before  judges  who  were 
strangers  to  the  true  religion,  the  Jews  and  Christians 
appointed  arbitrators  of  their  own,  and  it  was  a  practice 
recommended  and  enjoined  by  St.  Paul,  how  much  more 
ought  such  a  practice  to  be  recommended  and  enforced, 
to  gain  the  still  nobler  end  of  preventing  the  calamities 
of  war. 


THE   RIGHTS  OF  WAR  AND   PEACE  277 

These  and  many  other  reasons  of  no  less  importance 
might  be  advanced  for  recommending  to  Christian  powers 
general  congresses  for  the  adjustment  of  their  various  in- 
terests, and  for  compelling  the  refractory  to  submit  to 
equitable  terms  of  peace. 

IX.  A  third   method  of   terminating   disputes,  without 
hostilities,  was   by   lot,  a   practice    commended  by  Dion 
Chrysostom  in  his  speech  on  the  interposition  of  fortune 
in    directing   affairs,    and     it  was    commended   long  be- 
fore him    by    Solomon    in  the  xviii.  chapter  of  his  Pro- 
verbs. 

X.  Nearly  related  to  the  last  named  method  is  that  of 
single  combat,  a   practice   recommended   under   the  idea 
that  by  the  risque  of  two  lives   a   quarrel  might  be   de- 
cided,   which    would   otherwise    have    cost    the    blood    of 
thousands.     In    Livy   we    find   Metius    addressing   Tullus 
in  the  following  terms,  "let  us   try  some   method  of  de- 
termining to  whom  the  pre-eminence  shall  belong,  with- 
out wasting  the  blood   of   each   people."     Strabo   says  it 
was  the  practice  of  the  ancient  Greeks,  and  Aeneas  pro- 
posed it  to  Turnus,  as  the  most  equitable  way  of  settling 
their  pretensions.     It   is   described   too  as  the  custom  of 
the  ancient  Franks. 

XI.  Although  in  doubtful  cases,  both  sides   are  bound 
to  devise  every  means  of  avoiding  hostilities,  yet  it  is  a 
duty  more  incumbent  upon  the  claimant   than   upon   the 
immediate  possessor  of  whatever  may  be  the    subject   of 
dispute.     For  it  is  a  rule  not  only  of  civil,  but  of  natural 
law,  that,  where  the  pretensions  are  equal,  those  of  the 
possessor  are  to  be  preferred. 

To  the  foregoing  remarks  an  additional  observation 
may  be  made,  that  if  any  one,  knowing  his  pretensions 
to  be  just,  cannot  produce  sufficient  proofs  to  convict  the 
intruder  of  injustice,  he  cannot  lawfully  have  recourse  to 
arms,  because  he  has  no  OSTENSIBLE  RIGHT,  by  which  he 
can  compel  the  intruder  to  relinquish  the  possession. 

XII.  But  where  the    right    is    ambiguous,    and    neither 
party  has  possession,  the  pretender,    who    refuses    to    di- 
vide the  claims,  may  reasonably  be  charged  with  injustice. 

XIII.  From  what  has  been  said  it  will  not  be  difficult 
to  settle  a  much  agitated  question,  whether,  with  respect 
to  those,  who  are  the  principal  movers   of  a   war,    there 
can  be  justice  on  both  sides.     For  there  are   distinctions 
proper  to  be   made    in    the    various    acceptations    of   the 
word  JUST. 


278  HUGO   GROTIUS 

A  tiling  is  said  to  be  just,  either  as  to  its  causes,  or 
its  effects.  The  causes  too  may  be  confined  either  to 
justice  in  a  PARTICULAR  acceptation,  or  they  may  be  ex- 
tended so  as  to  include  under  that  name  every  kind  of 
rectitude.  Again,  a  particular  acceptation  may  be  divided 
into  two  kinds,  one  relating  to  the  ACTION,  and  the  other 
to  the  agent.*  An  agent  may  be  said  to  act  justly,  when, 
in  what  he  does,  he  commits  no  breach  of  STRICT  LAW, 
though  his  conduct  may  not  be  conformable  to  equity. 

In  a  PARTICULAR  acceptation  of  the  word  justice,  with 
regard  to  a  matter  in  dispute,  it  cannot  in  war,  any 
more  than  in  legal  proceedings,  apply  to  both  sides. 
For  there  can  be  no  moral  principle,  commanding  us, 
under  the  same  circumstances,  both  to  DO,  and  to  AB- 
STAIN from  a  particular  action.  It  may  happen  indeed 
that  neither  of  two  belligerent  powers  may  act  unjustly. 
For  no  one  can  be  charged  with  acting  unjustly  unless 
he  knows  that  he  is  doing  so;  but  there  are  many,  who 
are  not  aware  of  the  nature,  extent,  and  consequences 
of  their  measures.  Thus  in  a  law-suit,  both  parties  may 
sincerely  believe  that  they  have  justice  on  their  side. 
For  many  things  both  in  law  and  fact,  which  would  es- 
tablish a  right,  may  escape  the  notice  of  men. 

In  a  GENERAL  acceptation,  an  action  may  be  called 
just,  where  the  agent  is  free  from  every  kind  of  blame. 
Yet  in  many  cases  an  agent  may  deviate  from  the  strict 
rules  of  legal  justice,  and  be  liable  to  no  blame, 
when  that  deviation  is  owing  to  unavoidable  ignorance, 
there  having  been  neither  time  nor  opportunity  sufficient 
for  him  to  know  the  substance,  or  perhaps  existence  of 
the  law.  So  it  may  happen  in  law-suits,  that  both  parties 
are  free  not  only  from  the  imputation  of  injustice,  but 
from  all  blame,  especially  where  either  of  them  is  liti- 
gating a  matter  not  on  his  own,  but  on  another's  account; 
as  for  instance  where  a  guardian  is  acting  for  his  ward, 
he  would  not  be  authorized  in  abandoning  even  a  doubted 
right.  Aristotle  says  that  in  matters  of  disputed  right 
neither  side  can  be  charged  with  injustice;  conformably 
to  which  opinion  Quintilian  observes  that  an  upright 

*  Thus  letters  of  marque  and  reprisal,  by  which  individuals  are  en- 
abled to  redress  their  own  wrongs,  must  issue  from  the  sovereign 
power,  otherwise  the  hostilities  of  such  individuals  would  be  unlaw- 
ful. So  that  here  the  ACTION  would  be  unlawful,  that  is  unjust,  un- 
less performed  by  an  AGENT,  who  had  a  commission  from  public 
authority. 


THE   RIGHTS   OF  WAR   AND   PEACE  279 

pleader  may  be  engaged  on  either  side  of  the  question. 
Aristotle  further  observes  that  passing  a  just  judgment 
is  an  ambiguous  term,  signifying  that  a  judge  deter- 
mines either  according  to  the  strict  letter  of  the  law,  or 
according  to  the  dictates  of  his  own  conscience.  And, 
in  another  place,  he  has  said  that  giving  a  wrong  judg- 
ment through  ignorance  is  no  act  of  injustice. 

But  in  matters  of  war  and  peace,  where  such  weighty 
and  varied  interests  on  all  sides  are  concerned,  it  would 
be  difficult  to  obtain  a  judgment  purely  impartial,  and 
abstracted  from  all  personal  motives,  unless  there  be  the 
most  clear  and  undeniable  evidence  on  the  points  in 
question. 

If  we  denominate  a  thing  to  be  just,  from  its  effect 
in  conferring  certain  rights,  in  this  sense  it  is  plain  that 
in  war  there  may  be  justice  on  both  sides.  In  the  same 
manner,  a  sentence  not  strictly  legal,  or  a  possession 
not  perfectly  just  may  nevertheless  confer  certain  rights. 


CHAPTER    XXIV. 

PRECAUTIONS  AGAINST  RASHLY  ENGAGING   IN   WAR,    EVEN 
UPON  JUST  GROUNDS. 

Relaxation  of  right  in  order  to  avoid  war — particularly  penalties  — 
Self-preservation  motive  for  forbearing  hostilities  —  Prudential  rules 
in  the  choice  of  advantages  —  Peace  preferable  to  the  extermination 
of  hostile  powers  —  Forbearance  prudent  in  inferior  powers  —  War 
not  to  be  undertaken,  but  from  necessity. 

I.  Although  it  seems  not  to  fall  within  the   immediate 
province    of    a    treatise,   entitled    the    RIGHTS   OF   WAR,  to 
enter  into  an  investigation  of  other    moral   duties,  which 
the  relations  of  war  and  peace  prescribe,  yet  it  may  not 
be  improper  slightly  to  touch  upon  certain  errors,  which 
it  is  necessary  to  obviate,  in   order   to  prevent   any  one 
from  supposing,  that,  after  establishing  the  right  of  war, 
he  is  authorized,  INSTANTLY  or  at  ALL  TIMES,  to  carry  his 
principles  into  action,  and  to  reduce  his  theory  to  practice. 
So  far  from  this,  it  .frequently  happens  that  it  is  an   act 
of  greater  piety  and  rectitude   to   yield   a   right   than  to 
enforce  it. 

It  was  before  shewn,  in  its  proper  place  how  honour- 
able it  is  to  be  regardless  of  our  own  lives,  where  we 
can  preserve  the  lives,  and  promote  the  lasting  welfare 
of  others.  A  duty  that  should  operate  with  greater  force 
upon  Christians,  who  have  before  their  eyes  continually 
the  example  of  him,  who  died  to  save  us,  while  we  were 
enemies  and  ungodly.  An  example  which  calls  upon  us, 
in  the  most  affecting  manner,  not  to  insist  upon  the 
rigorous  prosecution  of  our  justest  rights,  where  it  can- 
not be  done  but  by  the  calamities,  which  war  occasions. 
If  arguments  and  motives  like  these  wanted  authorities, 
abundance  of  authorities  might  be  adduced  for  their  support. 

II.  Many  reasons  might  be  brought  to  dissuade  us  from 
urging  the  full   infliction  of   a  punishment.     There  is  an 
obvious  instance  in   the  conduct  of  fathers,  who  connive 
at  many  faults  in  their  children.     But  whoever,  is  author- 
ized to  punish    another,  assumes   the  character  of  a  sov- 
ereign ruler,  that   is,  of   a   father;   in   allusion   to  which 
St.    Augustin,    addressing    Count    Marcellinus,    says,    WO 
Christian  Judge,  fulfil  the  office  of  a  pious  father." 

(280) 


THE   RIGHTS   OF   WAR  AND   PEACE  381 

Sometimes  indeed  men  are  so  circumstanced,  that  to 
relinquish  a  right  becomes  not  only  a  laudable  act,  but 
a  debt  of  respect  to  that  law,  which  commands  us  to  love 
our  enemies:  a  law  to  be  respected  and  obeyed  not  only 
for  its  intrinsic  value,  but  as  being  a  precept  of  the  gos- 
pel. By  the  same  law,  and  for  the  same  reasons,  we  are 
commanded  to  pray  for  and  to  promote  the  welfare  and 
safety  of  Christian  Princes  and  Kings,  because  their  wel- 
fare and  safety  are  so  essential  to  the  order,  peace,  and 
happiness  of  society. 

III.  With  respect  to  the  pardon  of  offences  committed 
against  ourselves,  little    need   be  said,  as  it  is  known  to 
be  a  leading  clause  in  the  code  of  a  Christian's  duty,  to 
which  he   readily  and  freely  submits,  knowing  that  God 
for  Christ's   sake   has  forgiven  him.     Thus  revealed  law 
adds  a  sanction  to  what  was  known  by  heathens  to  be  an 
amiable  precept.     Cicero   has   drawn  a  fine   character  of 
Caesar,  in  which  he  commends  the  excellence  of  his  mem- 
ory that    could    recollect   every  thing   but   injuries.     We 
find  many  noble  examples  of  this  excellent  virtue  in  the 
writings  of    Moses  and   in    various    other  parts  of  scrip- 
ture.    These,  and   these   motives   ALONE,  when   they  can 
safely  be  complied  with  are  sufficient  to  keep  the  sword 
within  its  scabbard.     For  the   debt  of  love  and  forbear- 
ance to  our  enemies  is  an  obligation,  which  it  is  honour- 
able to  discharge. 

IV.  It  is  often  a  duty,    which   we   owe   to  our  country 
and  ourselves,  to  forbear  having  recourse  to  arms.     After 
the  college  of   heralds  had  pronounced  a  war  to  be  just 
we  are  informed  by  Plutarch   in   the  life   of  Numa,  that 
the  Senate  further  deliberated,  whether  it  was  expedient 
to  undertake    it.      According   to   our    Saviour's   beautiful 
and  instructive  parable,  a  king,  when  he  is  obliged  to  go 
to  war  with  another  king,    should  first   sit  down,  an  ex- 
pression  implying   an   act   of   deliberation,    and  consider 
within  himself,    whether,    with    ten   thousand   men  he  is 
able  to  encounter  one    who  is    coming   against  him  with 
twenty  times   that  number:  and  if   he  finds  himself  un- 
equal to  the  contest,    before   the   enemy  has  entered  his 
territories  he  will  send  an  embassy  to  him  offering  terms 
of  peace. 

V.  In  all  cases  of   deliberation,  not   only   the  ultimate 
but    the    intermediate    objects    leading  to    the    principal 
ends  are   to  be  considered.      The  final  object   is    always 
some  good,  or   at  least  the   evasion   of  some  evil,  which 


282  HUGO   GROTIUS 

amounts  to  the  same.  The  means  are  never  to  be  con- 
sidered by  THEMSELVES,  but  only  as  they  have  a  tendency 
to  the  proposed  end.  Wherefore  in  all  cases  of  deliber- 
ation, the  proportion,  which  the  means  and  the  end  bear 
to  each  other,  is  to  be  duly  weighed,  by  comparing  them 
together:  a  mode  of  comparison,  in  which  there  are 
three  rules  necessary  to  be  observed. 

The  first  thing,  in  a  moral  point  of  view,  to  be  con- 
sidered is,  what  tendency  the  desired  object  has  to 
produce  good  or  evil ;  and,  if  the  former  has  the  prepon- 
derancy,  we  are  then  at  liberty  to  chuse  it. —  In  the  second 
place,  if  it  appears  difficult  to  decide,  whether  the  good 
or  the  evil  predominates,  we  may  chuse  the  object,  if,  in 
the  choice  and  use  of  our  means,  we  can  give  a  turn  to 
affairs,  that  may  throw  the  preponderance  into  the  scale 
of  advantage  —  or  lastly  if  the  good  and  the  evil  bear  no 
proportion  to  each  other,  nor  the  means,  AT  THE  FIRST 
VIEW,  appear  adequate  to  the  end,  if,  in  pursuing  an 
object,  the  tendency  to  good,  compared  with  the  tendency 
to  evil  be  greater  than  the  evil  itself  when  compared 
with  the  good;  or  if  the  good,  in  comparison  of  the  evil, 
be  greater  than  the  tendency  to  evil,  in  comparison  of 
the  tendency  to  good,*  we  may  decide  in  favour  of  it. 

*  The  three  rules  above  laid  down  by  our  author  may  be  illustrated 
by  the  three  following  propositions. — 

In  the  first  place,  it  cannot  be  denied,  that  war,  in  the  ABSTRACT,  is 
an  evil,  but  then  it  is  necessary  to  consider,  -whether  it  is  not  an  evil 
that  must,  in  many  cases,  be  submitted  to  in  order  to  avoid  still  greater 
calamities. 

Secondly,  in  the  prosecution  of  a  war,  where  the  advantages,  or  evils 
are  doubtful,  it  is  necessary  to  endeavour  after  the  attainment  of  new 
confederacies  or  alliances,  that  may  compensate  for  the  losses  sustained, 
or  may  open  out  new  channels  of  trade  and  commerce,  which  may 
supply  the  place  of  those  that  have  been  closed  by  the  immediate  war. 

As  an  illustration  of  the  third  point,  we  may  adduce  the  conduct  of 
King  William,  after  the  British  Cabinet  that  met  at  Tunbridge  Wells, 
August  28,  1698,  represented  to  him  how  inadequate  the  spirit  of  the 
nation  was  to  enter  into  a  new  war,  and  to  bear  additional  burdens, 
concluding,  (<  this  is  the  truth  of  the  fact  upon  which  your  Majesty  will 
determine  what  resolution  ought  to  be  taken. »  His  Majesty  did  deter- 
mine upon  war,  as  the  least  of  all  the  evils  which  faced  his  people,  not- 
withstanding the  APPARENT  inadequacy  of  his  means.  And  (<in  that 
great  war,  says  Mr.  Burke,  carried  on  against  Louis  the  XIV,  for  near 
eighteen  years,  government  spared  no  pains  to  satisfy  the  nation,  that 
though  they  were  to  be  animated  by  a  desire  of  glory,  glory  was  not 
their  ultimate  object:  but  that  every  thing  dear  to  them,  in  religion,  in 
law,  in  liberty,  every  thing,  which  as  freemen,  as  Englishmen,  and  as 
citizens  of  the  great  commonwealth  of  Christendom,  they  had  at  heart, 
was  then  at  stake. w — Lett,  on  Regie  Peace,  p.  90. 


THE   RIGHTS  OF  WAR  AND   PEACE  283 

Cicero  has  treated  these  abstruse  points  in  a  more  pop- 
ular and  pleasing  manner  than  abstract  reasoning  would 
allow.  Applying  all  the  beauties  of  eloquence  to  eluci- 
date moral  truth,  he  says,  "it  is  the  height  of  folly  and 
presumption  UNNECESSARILY  to  expose  ourselves  to  dan- 
gers. In  encountering  calamities  we  must  imitate  the 
conduct  of  physicians  who  use  gentle  remedies  with  weakly 
constitutions.  But  in  constitutions  of  a  stronger  cast,  es- 
pecially, in  virulent  disorders,  they  must  have  recourse 
to  more  powerful,  though  more  dangerous  expedients. 
In  the  same  manner,  a  skilful  pilot  would  not  attempt  to 
face  the  wind  directly,  but  would  tack  about  in  order  to 
avoid  its  fury.* 

VI.  An  example  of   evils,    that   ought   by   all   possible 
means  to  be  avoided,    is    furnished   by   the    consultations 
among  the  states  of  Gaul,  who,  according  to  the  account 
of  Tacitus,  deliberated,  whether  they  should  make  choice 
of  liberty  or  peace.     By  liberty  is  here  meant  civil  liberty, 
that  is,  the  right  of  governing  themselves,  and  remaining 
independent  states;  and  by  peace  is  meant  such  a  peace 
as  would  prevent  the  whole  people  from   being  extermi- 
nated, a  calamity  like  that  which  befel   the   Jews,    when 
their  city  was  besieged  by  Titus. 

In  such  cases  reason  itself  dictates  the  choice  of  peace, 
as  the  only  means  of  preserving  life,  which  is  the  imme- 
diate gift  of  God,  and  the  foundation  of  every  blessing. 
So  that  the  Almighty,  as  we  read  in  his  sacred  volume, 
deems  it  a  kindness,  when  instead  of  destroying  a  peo- 
ple, he  permits  them  to  be  reduced  to  slavery.  There- 
fore he  admonishes  the  Hebrews,  by  the  mouth  of  his 
prophet,  to  surrender  to  the  Babylonians,  rather  than  to 
die  by  pestilence  and  famine. 

What  has  been  said  of  submitting  to  disadvantages, 
and  some  calamities  for  the  preservation  of  life  or  lib- 
erty, may  be  applied  to  every  object  of  dear  value.  As 
Aristides  says,  it  is  a  moral  duty  in  a  storm,  to  save  the 
ship  by  casting  overboard  the  goods,  but  not  the  crew. 

VII.  In  exacting  punishment  it  is  necessary  to  use  the 
precaution  of  avoiding  hostilities   with  a  power   of  equal 
strength.     For  to   avenge  a  wrong,  or  to   assert  a  right 
by  force  of  arms  requires  a  superiority  of  strength.     So 
that  not  only  prudence,  but  a  regard   for  their  subjects 
will  at  all  times  deter  rulers  from  involving  their  people 
in  the  calamities  of  war.     A  principle  of  justice  too,  the 
sole  directress  of  human   affairs,  binding  sovereigns  and 


284  HUGO   GROTIUS 

subjects  to  each  other  by  their  mutual  interests,  will 
teach  this  lesson  of  precaution.  For  reparation  must  be 
looked  for  at  the  hands  of  those,  who  bring  on  the 
calamities  of  wanton  and  unnecessary  war.  Livy  calls 
that  a  just,  which  is  a  necessary  war,  and  it  is  a  pious 
cause,  when  no  hope  is  left,  but  in  recourse  to  arms. 

VIII.  It   is  but   now   and   then    a   cause    of   such    im- 
perious  necessity    occurs,  as  to    demand   the   decision  of 
the    sword,  and   that  is,    when,  as    Florus    says,  the    de- 
sertion of  a  right  will  be  followed  by  calamities  far  more 
cruel,  than    the  fiercest    wars.     Seneca   says,  "that  it   is 
right   to   meet    danger,  when    equal    harm    would    result 
from   acquiescing  in    an    injury,*  and  in   this,  he  is  sup- 
ported by  Tacitus,  who  calls  (<  war  a  happy  exchange  for 
a  miserable  and  insecure  peace,*  and  the  same  animated 
writer   in    another   place    observes,    that   <(  an    oppressed 
people  may  recover    their    liberty  by    daring    enterprize, 
and,  if  defeated  they   cannot  be  reduced  to  greater  sub- 
jection than   before ; )J  a  sentiment,  with   which    Livy  ac- 
cords, in  naming  "peace,  when  coupled   with   servitude, 
a  far  more    grievous   calamity,  than   all   the   horrors    of 
war. w     But  it  is  not  so,  as  Cicero  says,  where  defeat  will 
be  attended  with  proscription,  and  victory  with  bondage, 

IX.  Another  necessary   precaution   relates  to  the  TIME, 
when  it  is   proper   to   undertake   a   war,  which  depends 
upon  a  due  calculation,  whether  there   are  resources  and 
strength  sufficient  to  support  our  just  pretensions.     This 
is  conformable  to   what   was    said  by    Augustus,  that  no 
war  should  be   undertaken,  but  where  the   hopes   of  ad- 
vantage could    be   shewn   to   overbalance   the    apprehen- 
sions   of  ruin.     Scipio    Africanus,    and    Lucius   Aemilius 
Paulus  used    to   speak  in    terms   not  inapplicable  to  this 
subject,    for  they   said  <(it   was   never    right    to  try  the 
event  of  battle,  but  under  extreme  necessity,  or  favour- 
able circumstances. w 

The  above  precautions  are  of  great  use,  where  we  hope 
by  the  dread  and  fame  of  our  preparations  to  accomplish 
our  object  with  little  or  no  danger. 


CHAPTER    XXV. 
THE   CAUSES  OF  UNDERTAKING  WAR  FOR  OTHERS. 

Sovereigns  may  engage  in  war  to  support  the  rights  of  their  subjects  — 
Whether  an  innocent  subject  can  be  delivered  up  to  an  enemy  to  avoid 
danger  —  Wars  justly  undertaken  in  support  of  confederates  upon 
equal,  or  unequal  terms  —  For  friends  —  For  any  men  —  Omission  of 
this  duty  not  blamable,  from  motives  of  self-preservation  —  Whether 
war  may  be  justly  undertaken  in  defence  of  another's  subjects,  ex- 
plained by  distinctions. 

I.  IN  SPEAKING  of  belligerent  powers,  it  was  shewn  that 
the  law  of  nature  authorises  the  assertion  not  only  of  our 
own  rights,  but  of   those  also   belonging  to  others.     The 
causes  therefore,  which  justify  the  principals  engaged  in 
war,  will  justify  those  also,  who  afford  assistance  to  oth- 
ers.    But  whether   any   one   presides  over  an  household, 
or  a  state,  the  first  and  most   necessary   care  is  the  sup- 
port of  his   dependents  or   subjects.     For  the   household 
forms  but  one  body  with  the  master,  and  the  people  with 
the  sovereign.     So  the   people  of  Israel  under  the   com- 
mand of  Joshua  took  up  arms  in  support  of  the  Gibeon- 
ites,    whom   they    had    subdued.     Our    forefathers,    said 
Cicero  to  the   Romans,    often  engaged  in  war  to  support 
the  rights  of  merchants,    whose    vessels  had   been  plun- 
dered.    The  same  Romans  who  would  refuse  to  take  arms 
for  a  people   who   were  only  allies,    did  not   hesitate   to 
assert  by  force  of  arms   the  injured  rights  of  the  same, 
when  they  became  their  subjects. 

II.  Yet  the  cause  of  any  subject,  although  it  may  be  a 
just  cause,    does  not  always  bind  sovereigns  or  rulers  to 
take  arms:  but  only  when  it  can  be  done  without  incon- 
venience  to   all,    or  the   greater  part   of  their   subjects. 
For  the   interests  of  the  whole   community,    rather  than 
those  of  particular  parts,  are   the   principal   objects  of  a 
sovereign's  care;  and  the  greater  any  part  is,  the  nearer 
its   claims   and  pretensions  approximate   to  those  of  the 
whole. 

III.  Some  have  maintained  the  position,  that  if  an  enemy 
requires   the    surrender  of   a   citizen,    however   innocent, 
the   demand  must   unquestionably   be    complied   with,  if 
the  state  is  too  feeble  to  resist  it.     This  opinion  is  strongly 

(285) 


286  HUGO   GROTIUS 

controverted  by  Vasquez,  but  if  we  attend  to  his  mean- 
ing more  than  his  words,  we  shall  find  it  to  be  the  drift 
of  his  argument,  that  such  a  citizen  ought  not  to  be 
rashly  abandoned,  while  there  remains  any  possible  hope 
of  protecting  him.  For  as  a  case  in  point,  he  alleges  the  con- 
duct of  the  Italian  Infantry,  who,  upon  receiving  assurances 
of  protection  from  Caesar,  deserted  Pompey,  even  before 
he  was  reduced  to  absolute  despair:  a  conduct  which  he 
deservedly  reprobates  in  the  strongest  terms. 

But  whether  an  innocent  citizen  may  be  given  up  into 
the  hands  of  an  enemy  to  avoid  imminent  destruction, 
which  would  otherwise  fall  upon  the  state,  is  a  point  that 
HAS  BEEN  formerly,  and  is  still  disputed  by  the  learned, 
according  to  the  beautiful  fable,  which  Demosthenes  told 
of  the  wolves,  who  demanded  of  the  sheep  the  surrender 
of  the  dogs,  as  the  only  terms  of  peace.  The  lawfulness  of 
this  is  denied  not  only  by  Vasquez,  but  by  one,  whose 
opinions  that  writer  condemns,  as  bearing  a  near  ap- 
proach to  perfidy.  Sotus  holds  it  as  an  established  maxim, 
that  such  a  citizen  is  bound  to  deliver  himself  up:  this 
Vasquez  denies,  because  the  nature  of  civil  society,  which 
every  one  has  entered  into  for  his  own  advantage,  re- 
quires no  such  thing. 

No  conclusion  can  be  drawn  from  hence,  except  that 
a  citizen  is  not  bound  to  this  by  any  RIGHT  STRICTLY  so 
CALLED,  while  at  the  same  time  the  law  of  charity  will 
not  suffer  him  to  act  otherwise.  For  there  are  many 
duties  not  properly  included  in  the  idea  of  strict  justice. 
These  are  regarded  as  acts  of  good  will,  the  performance 
of  which  is  not  only  crowned  with  praise,  but  the  omis- 
sion of  them  cannot  escape  censure. 

Such  is  the  complexion  of  the  following  maxim,  that 
every  one  should  prefer  the  lives  of  an  innumerable  and 
innocent  multitude  to  his  own  personal  and  private  wel- 
fare. Cicero,  in  defending  Publius  Sextius,  says,  <(If  I 
were  taking  a  voyage  with  my  friends,  and  happening  to 
meet  with  a  fleet  of  pirates,  they  threatened  to  sink  our 
little  bark,  unless  the  crew  surrendered  me  as  the  victim 
to  appease  their  fury,  I  would  sooner  throw  myself  into 
the  deep,  than  suffer  my  companions  out  of  their  affec- 
tion to  me  to  encounter  sure  death,  or  even  imminent 
danger. 

But  after  establishing  this  point,  there  remains  a  doubt, 
whether  any  one  can  be  COMPELLED  to  do  what  he  is 
BOUND  to  do.  Sotus  denies  this,  and  in  support  of  his 


THE   RIGHTS   OF   WAR  AND   PEACE  287 

argument  quotes  the  case  of  a  rich  man,  who,  though 
bound  from  motives  of  charity  to  supply  the  wants  of 
the  needy,  cannot  be  compelled  to  do  so.  But  the  trans- 
actions of  equals  with  each  other,  must  be  regulated 
upon  principles  very  different  from  those  that  regulate 
the  mutual  relations  of  sovereigns  and  subjects.  For  an 
equal  cannot  compel  an  equal  to  the  performance  of  any 
thing,  but  what  he  is  strictly  bound  by  law  to  perform. 
But  a  superior  may  compel  an  inferior  to  the  performance 
of  OTHER  duties  besides  those  of  PERFECT  OBLIGATIONS; 
for  that  is  a  right  peculiarly  and  essentially  belonging  to 
the  nature  of  superiority.  Therefore  certain  legislative 
provisions  may  be  made,  enacting  the  performance  of 
such  duties,  as  seem  to  partake  of  the  nature  of  benevo- 
lence. Phocion,  as  it  is  mentioned  in  Plutarch's  lives, 
said  that  the  persons,  whom  Alexander  demanded,  had 
reduced  the  commonwealth  to  such  distress,  that  if  he 
demanded  even  his  dearest  friend  Nicocles,  he  should 
vote  for  delivering  him  up. 

IV.  Next  to  subjects,  and  even  upon  an  equal  footing 
with  them,  as  to  claims  of  protection,  are  allies,  a  name 
including,    in   its   consequences   and   effects,  both   those, 
who  have  formed  a  subordinate  connection  with  another 
power,  and  those  who  have  entered  into  engagements  of 
mutual  assistance.     Yet  no  such  compacts  can  bind  either 
of  the  parties   to   the   support   or  prosecution  of  unjust 
wars.     And  this  is  the  reason,  why  the  Lacedaemonians, 
before  they  went  to  war  with  the  Athenians,  left  all  their 
allies  at  liberty  to  decide  for  themselves  upon  the  justice 
of  the  quarrel.     To  which  an  additional  observation  may 
be  made,  that  no  ally  is  bound  to  assist  in  the  prosecu- 
tion of  schemes,  which    afford  no  possible   prospect  of  a 
happy  termination.     For  this  would  be  defeating  the  very 
end  of  alliances,  which    are   contracted   from   motives  of 
public   advantage,    and    not   for   a   participation  in   ruin. 
But  any  power  is  obliged  to  defend  an  ally  even  against 
those,  with   whom  it   is   already  connected  by  subsisting 
treaties,  provided   those  treaties   contain  no  express  con- 
dition   prohibiting   such   defence.       Thus    the    Athenians 
might  have   defended  the   Corcyraeans,  IN  A  JUST  CAUSE, 
even  against  the  Corinthians,  their  more  ancient  allies. 

V.  A  third  case  is  that,  where  assistance  has  not  been 
expressly   promised  to  a   friendly  power,    and  yet  is  due 
on  the    score   of    friendship,  if  it  can   be   given    without 
inconvenience. 


288  HUGO   GROTiUS 

Upon  this  principle  Abraham  took  arms  in  defence  of 
his  kinsman  Lot:  and  the  Romans  charged  the  Antiates 
to  commit  no  acts  of  piracy  upon  the  Greeks,  as  being 
a  people  of  the  same  kindred  with  the  Italians.  It  was 
no  unusual  thing  with  the  Romans  to  begin,  or  at  least 
to  threaten  to  begin  wars  not  only  in  support  of  allies, 
to  whom  they  were  bound  by  treaty,  but  in  support  of 
any  friendly  powers. 

VI.  The  last  and  most  extensive  motive  is  the  common 
tie  of  one   COMMON  NATURE,    which   alone   is   sufficient  to 
oblige  men  to  assist  each  other. 

VII.  It  is  a  question,    whether    one  man   is   bound   to 
protect  another,  or  one  people  another  people  from  injury 
and  aggression.     Plato  thinks  that  the  individual  or  state 
not  defending  another  from  intended   violence  is  deserv- 
ing of  punishment.     A  case  for  which  provision  was  made 
by  the  laws  of  the  Egyptians. 

But  in  the  first  place  it  is  certain  that  no  one  is  bound 
to  give  assistance  or  protection,  when  it  will  be  attended 
with  evident  danger.  For  a  man's  own  life  and  property, 
and  a  state's  own  existence  and  preservation  are  either 
to  the  individual,  or  the  state,  objects  of  greater  value 
and  prior  consideration  than  the  welfare  and  security  of 
other  individuals  or  states. 

Nor  will  states  or  individuals  be  bound  to  risk  their 
own  safety,  even  when  the  aggrieved  or  oppressed  party 
cannot  be  relieved  but  by  the  destruction  of  the  invader 
or  oppressor.  For  under  some  circumstances  it  is  impos- 
sible successfully  to  oppose  cruelty  and  oppression,  the 
punishment  of  which  must  be  left  to  the  eternal  judge 
of  mankind. 

VIII.  Though  it  is    a  rule    established   by  the   laws  of 
nature  and  of  social    order,  and   a  rule    confirmed  by  all 
the  records  of  history,    that  every   sovereign  is   supreme 
judge  in  his  own  kingdom  and  over  his  own  subjects,  in 
whose   disputes  no   foreign    power    can   justly    interfere. 
Yet  where  a  Busiris,  a  Phalaris  or  a   Thracian    Diomede 
provoke  their  people  to  despair  and  resistance  by  unheard 
of  cruelties,  having  themselves  abandoned  all  the  laws  of 
nature,  they  lose   the    rights  of   independent    sovereigns, 
and  can   no    longer   claim   the   privilege    of    the    law    of 
nations.     Thus  Constantine  took    up  arms    against   Max- 
entius  and    Licinius,  and   other  Roman   emperors    either 
took,  or  threatened  to  take  them  against  the  Persians,  if 
they  did  not  desist  from  persecuting  the  Christians. 


THE   RIGHTS  OF  WAR  AND   PEACE  289 

Admitting  that  it  would  be  fraught  with  the  greatest 
dangers  if  subjects  were  allowed  to  redress  grievances 
by  force  of  arms,  it  does  not  necessarily  follow  that 
other  powers  are  prohibited  from  giving  them  assistance 
when  labouring  under  grievous  oppressions.  For  when- 
ever the  impediment  to  any  action  is  of  a  personal  nature, 
and  not  inherent  in  the  action  itself,  one  person  may 
perform  for  another,  what  he  cannot  do  for  himself, 
provided  it  is  an  action  by  which  some  kind  service  may 
be  rendered.  Thus  a  guardian  or  any  other  friend  may 
undertake  an  action  for  a  ward,  which  he  is  incapacitated 
from  doing  for  himself. 

The  impediment,  which  prohibits  a  SUBJECT  from  mak- 
ing resistance,  does  not  depend  upon  the  nature  of  the 
OCCASION,  which  would  operate  equally  upon  ithe  feelings 
of  men,  whether  they  were  subjects  or  not,  but  upon  the 
character  of  the  persons,  who  cannot  transfer  their 
natural  allegiance  from  their  own  sovereign  to  another. 
But  this  principle  does  not  bind  those,  who  are  not  the 
liege-subjects  of  that  sovereign  or  power.  Their  opposi- 
tion to  him  or  the  state  may  sometimes  be  connected 
with  the  defence  of  the  oppressed,  and  can  never  be 
construed  into  an  act  of  treason.  But  pretexts  of  that 
kind  cannot  always  be  allowed,  they  may  often  be  used 
as  the  cover  of  ambitious  designs.  But  right  does  not 
necessarily  lose  its  nature  from  being  in  the  hands  of 
wicked  men.  The  sea  still  continues  a  channel  of  lawful 
intercourse,  though  sometimes  navigated  by  pirates,  and 
swords  are  still  instruments  of  defence,  though  sometimes 
wielded  by  robbers  or  assassins. 


BOOK  III. 

CHAPTER  I. 
WHAT  is  LAWFUL  IN  WAR. 

What  is  lawful  in  war — General  Rules  derived  from  the  law  of  nature — 
Stratagems  and  lies  —  Arrangement  of  the  following  parts  —  First 
rule,  all  things  necessary  to  the  end  lawful  —  Right  resulting  not  only 
from  the  origin  of  a  war,  but  from  causes  growing  out  of  the  same 
—  Certain  consequences  justifiable,  though  not  originally  lawful  — 
What  measures  are  lawful  against  those  who  furnish  an  enemy  with 
supplies  —  Stratagems  —  Negative  —  Positive  —  Sometimes  allowable 
to  use  words  in  a  sense  different  from  the  general  acceptation  —  A  lie 
according  to  the  true  notion  of  it  injurious  to  the  rights  of  others  — 
Falsehood  allowable  in  order  to  deceive  children  or  madmen  —  Any 
one  addressing  another  without  intentions  to  deceive,  not  answerable 
for  the  misconceptions  of  a  third  person  —  A  person  not  answerable 
for  the  wilful  mistakes  of  those  to  whom  he  speaks  —  The  fictitious 
threats  of  a  person  in  authority  —  Fiction  allowable  in  order  to  save 
the  lives  of  the  innocent,  or  to  promote  other  equally  important  pur- 
poses —  Deception  lawful  against  an  enemy,  but  not  including  prom- 
ises, or  oaths — To  forbear  using  this  privilege  an  act  of  generosity 
and  Christian  simplicity  —  Not  allowable  to  urge  others  to  what  is 
unlawful  for  them,  but  not  for  us  to  do  —  Allowable  to  use  the  serv- 
ices of  deserters. 

I.  HAVING,  in  the  preceding  books,  considered  by  what 
persons,  and  for  what  causes,  war  may  be  justly  declared 
and  undertaken,  the  subject  necessarily  leads   to   an   in- 
quiry into  the   circumstances,  under  which  war  may  be 
undertaken,  into  the  extent,  to  which  it  may  be  carried, 
and   into   the   manner,  in   which    its   rights   may  be   en- 
forced.     Now    all   these   matters   may   be  viewed  in   the 
light  of  privileges  resulting  simply  from  the  law  of  nature 
and  of  nations,  or  as  the  effects  of  some  prior  treaty  or 
promise.     But  the  actions,  which   are   authorised   by  the 
law  of  nature,  are  those  that  are  first  entitled  to  atten- 
tion. 

II.  In   the   first   place,  as  it   has  occasionally  been  ob- 
served, the  means  employed  in  the  pursuit  of  any  object 
must,  in  a  great  degree,  derive  the  complexion   of  their 
moral   character  from    the   nature   of   the   end   to  which 

(ago) 


THE   RIGHTS   OF    WAR  AND   PEACE  291 

they  lead.  It  is  evident  therefore  that  we  may  justly 
avail  ourselves  of  those  means,  provided  they  be  lawful, 
which  are  necessary  to  the  attainment  of  any  right. 
RIGHT  in  this  place  means  what  is  strictly  so  called,  sig- 
nifying the  moral  power  of  action,  which  any  one  as  a 
member  of  society  possesses.  On  which  account,  a  per- 
son, if  he  has  no  other  means  of  saving  his  life,  is  justi- 
fied in  using  any  forcible  means  of  repelling  an  attack, 
though  he  who  makes  it,  as  for  instance,  a  soldier  in 
battle,  in  doing  so,  is  guilty  of  no  crime.  For  this  is  a 
right  resulting  not  properly  from  the  crime  of  another, 
but  from  the  privilege  of  self-defence,  which  nature 
grants  to  every  one.  Besides,  if  any  one  has  SURE  and 
UNDOUBTED  grounds  to  apprehend  imminent  danger  from 
any  thing  belonging  to  another,  he  may  seize  it  without 
any  regard  to  the  guilt  or  innocence  of  that  owner.  Yet 
he  does  not  by  that  seizure  become  the  proprietor  of  it. 
For  that  is  not  necessary  to  the  end  he  has  in  view. 
He  may  DETAIN  it  as  a  precautionary  measure,  till  he 
can  obtain  satisfactory  assurance  of  security. 

Upon  the  same  principle  any  one  has  a  natural  right 
to  seize  what  belongs  to  him,  and  is  unlawfully  detained 
by  another:  or,  if  that  is  impracticable,  he  may  seize 
something  of  equal  value,  which  is  nearly  the  same  as 
recovering  a  debt.  Recoveries  of  this  kind  establish  a 
property  in  the  things  so  reclaimed;  which  is  the  only 
method  of  restoring  the  equality  and  repairing  the 
breaches  of  violated  justice.  So  too  when  punishment 
is  lawful  and  just,  all  the  means  absolutely  necessary  to 
enforce  its  execution  are  also  lawful  and  just,  and  every 
act  that  forms  a  part  of  the  punishment,  such  as  destroy- 
ing an  enemy's  property  and  country  by  fire  or  any  other 
way,  falls  within  the  limits  of  justice  proportionable  to 
the  offence. 

III.  In  the  second  place,  it  is  generally  known  that  it 
is  not  the  ORIGIN  only  of  a  just  war  which  is  to  be 
viewed  as  the  principal  source  of  many  of  our  rights, 
but  there  may  be  causes  growing  out  of  that  war  which 
may  give  birth  to  additional  rights.  As  in  proceedings 
at  law,  the  sentence  of  the  court  may  give  to  the  suc- 
cessful litigant  other  rights  besides  those  belonging  to 
the  original  matter  of  dispute.  So  those  who  join  our 
enemies,  either  as  allies  or  subjects,  give  us  a  right  of 
defending  ourselves  against  THEM  also.  So  too  a  nation 
engaging  in  an  unjust  war,  the  injustice  of  which  she 


292  HUGO  GROTIUS 

knows  and  ought  to  know,  becomes  liable  to  make  good 
all  the  expences  and  losses  incurred,  because  she  has 
been  guilty  of  occasioning  them.  In  the  same  manner 
those  powers,  who  become  auxiliaries  in  wars  undertaken 
without  any  reasonable  grounds,  contract  a  degree  of 
guilt  and  render  themselves  liable  to  punishment  in  pro- 
portion to  the  injustice  of  their  measures.  Plato  approves 
of  war  conducted  so  far,  as  to  compel  the  aggressor  to 
indemnify  the  injured  and  the  innocent. 

IV.  In  the  third  place,  an  individual  or  belligerent 
power  may,  in  the  prosecution  of  a  lawful  object,  do 
many  things,  which  were  not  in  the  contemplation  of 
the  original  design,  and  which  in  THEMSELVES  it  would 
not  be  lawful  to  do.  Thus  in  order  to  obtain  what 
belongs  to  us,  when  it  is  impossible  to  recover  the  spe- 
cific thing,  we  may  take  more  than  our  due,  under  con- 
dition of  repaying  whatever  is  above  the  real  value.  For 
the  same  reason  it  is  lawful  to  attack  a  ship  manned  by 
pirates,  or  a  house  occupied  by  robbers,  although  in  that 
ship,  or  that  house  there  may  be  many  innocent  persons, 
whose  lives  are  endangered  by  such  attack. 

But  we  have  had  frequent  occasion  to  remark,  that 
what  is  conformable  to  right  taken  in  its  strictest  sense 
is  not  always  lawful  in  a  moral  point  of  view.  For  there 
are  many  instances,  in  which  the  law  of  charity  will  not 
allow  us  to  insist  upon  our  right  with  the  utmost  rigour. 
A  reason  for  which  it  will  be  necessary  to  guard  against 
things,  which  fall  not  within  the  original  purpose  of  an 
action,  and  the  happening  of  which  might  be  foreseen: 
unless  indeed  the  action  has  a  tendency  to  produce 
advantages,  that  will  far  outweigh  the  consequences  of 
any  accidental  calamity,  and  the  apprehensions  of  evil 
are  by  no  means  to  be  put  in  competition  with  the  sure 
hopes  of  a  successful  issue.  But  to  determine  in  such 
cases  requires  no  ordinary  penetration  and  discretion. 
But  wherever  there  is  any  doubt,  it  is  always  the  safer 
way  to  decide  in  favour  of  another's  interest,  than  to 
follow  the  bent  of  our  own  inclination.  w  Suffer  the  tares 
to  grow,  says  our  divine  teacher,  least  in  rooting  up  the 
tares  you  root  up  the  wheat  also.8 

The  general  destruction,  which  the  Almighty,  in  right 
of  his  supreme  Majesty,  has  sometimes  decreed  and 
executed,  is  not  a  rule,  which  we  can  presume  to  follow. 
He  has  not  invested  men,  in  the  exercise  of  power, 
with  those  transcendent  sovereign  rights.  Yet  he  himself, 


THE  RIGHTS  OF  WAR  AND   PEACE  293 

notwithstanding  the  unchangeable  nature  of  his  sovereign 
will,  was  inclined  to  spare  the  most  wicked  cities,  if  ten 
righteous  persons  could  be  found  therein.  Examples 
like  these  may  furnish  us  with  rules  to  decide,  how  far 
the  rights  of  war  against  an  enemy  may  be  exercised  or 
relaxed. 

V.  It  frequently  occurs  as  a  matter  of  inquiry,  how  far 
we  are  authorised  to  act  against  those,  who  are  neither 
enemies,  nor  wish  to  be  thought  so,  but  who  supply 
our  enemies  with  certain  articles.  For  we  know  that  it 
is  a  point,  which  on  former  and  recent  occasions  has 
been  contested  with  the  greatest  animosity ;  some  wishing 
to  enforce  with  all  imaginary  rigour  the  rights  of  war, 
and  others  standing  up  for  the  freedom  of  commerce. 

In  the  first  place,  a  distinction  must  be  made  between 
the  commodities  themselves.  For  there  are  some,  such 
as  arms  for  instance,  which  are  only  of  use  in  war; 
there  are  others  again,  which  are  of  no  use  in  war,  but 
only  administer  to  luxury;  but  there  are  some  articles, 
such  as  money,  provisions,  ships  and  naval  stores, 
which  are  of  use  at  all  times  both  in  peace  and  war. 

As  to  conveying  articles  of  the  first  kind,  it  is  evident 
that  any  one  must  be  ranked  as  an  enemy,  who  supplies 
an  enemy  with  the  means  of  prosecuting  hostilities. 
Against  the  conveyance  of  commodities  of  the  second 
kind,  no  just  complaint  can  be  made. —  And  as  to  articles 
of  the  third  class,  from  their  being  of  a  doubtful  kind, 
a  distinction  must  be  made  between  the  times  of  war 
and  peace.  For  if  a  power  can  not  defend  itself,  but  by 
intercepting  the  supplies  sent  to  an  enemy,  necessity 
will  justify  such  a  step,  but  upon  condition  of  making 
restoration,  unless  there  be  some  additional  reasons  to 
the  contrary.  But  if  the  conveyance  of  goods  to  an 
enemy  tends  to  obstruct  any  belligerent  power  in  the 
prosecution  of  a  lawful  right,  and  the  person  so  convey- 
ing them  possesses  the  means  of  knowing  it;  if  that 
power,  for  instance,  is  besieging  a  town,  or  blockading  a 
port,  in  expectation  of  a  speedy  surrender  and  a  peace, 
the  person,  who  furnishes  the  enemy  with  supplies,  and 
the  means  of  prolonged  resistance,  will  be  guilty  of  an 
aggression  and  injury  towards  that  power.  He  will  incur 
the  same  guilt,  as  a  person  would  do  by  assisting  a 
debtor  to  escape  from  prison,  and  thereby  to  defraud 
his  creditor.  His  goods  may  be  taken  by  way  of  indem- 
nity, and  in  discharge  of  the  debt.  If  the  person  has 


294  HUGO   GROTIUS 

not  yet  committed  the  injury,  but  only  intended  to  do 
so,  the  aggrieved  power  will  have  a  right  to  detain  his 
goods,  in  order  to  compel  him  to  give  future  security, 
either  by  putting  into  his  hands  hostages,  or  pledges; 
or  indeed  in  any  other  way.  But  if  there  are  evident 
proofs  of  injustice  in  an  enemy's  conduct  the  person  who 
supports  him  in  such  a  case,  by  furnishing  him  with 
succours,  will  be  guilty  not  barely  of  a  civil  injury,  but 
his  giving  assistance  will  amount  to  a  crime  as  enormous, 
as  it  would  be  to  rescue  a  criminal  in  the  very  face  of 
the  judge.  And  on  that  account  the  injured  power  may 
proceed  against  him  as  a  criminal,  and  punish  him  by  a 
confiscation  of  his  goods. 

These  are  the  reasons,  which  induce  belligerent  powers 
to  issue  manifestoes,  as  an  appeal  to  other  states,  upon 
the  justice  of  their  cause,  and  their  probable  hopes  of 
ultimate  success.  This  question  has  been  introduced 
under  the  article,  which  refers  to  the  law  of  nature,  as 
history  supplies  us  with  no  precedent  to  deduce  its  es- 
tablishment from  the  voluntary  law  of  nations. 

We  are  informed  by  Polybius,  in  his  first  book,  that 
the  Carthaginians  seized  some  of  the  Romans,  who  were 
carrying  supplies  to  their  enemies,  though  they  after- 
wards gave  them  up,  upon  the  demand  of  the  Romans. 
Plutarch  says  that  when  Demetrius  had  invested  Attica, 
and  taken  the  neighbouring  towns  of  Eleusis  and  Rham- 
nus,  he  ordered  the  master  and  pilot  of  a  ship,  attempt- 
ing to  convey  provisions  into  Athens,  to  be  hanged,  as 
he  designed  to  reduce  that  city  by  famine:  this  act  of 
rigour  deterred  others  from  doing  the  same,  and  by  that 
means  he  made  himself  master  of  the  city. 

VI.  Wars,  for  the  attainment  of  their  objects,  it  cannot 
be  denied,  must  employ  force  and  terror  as  their  most 
proper  agents.  But  a  doubt  is  sometimes  entertained, 
whether  stratagem  may  be  lawfully  used  in  war.  The 
general  sense  of  mankind  seems  to  have  approved  of 
such  a  mode  of  warfare.  For  Homer  commends  his  hero, 
Ulysses,  no  less  for  his  ability  in  military  stratagem,  than 
for  his  wisdom.  Xenophon,  who  was  a  philosopher  as 
well  as  a  soldier  and  historian,  has  said,  that  nothing 
can  be  more  useful  in  war  than  a  well-timed  stratagem, 
with  whom  Brasidas,  in  Thucydides  agrees,  declaring  it 
to  be  the  method  from  which  many  great  generals  have 
derived  the  most  brilliant  reputation.  And  in  Plutarch, 
Agesilaus  maintains,  that  deceiving  an  enemy  is  both 


THE   RIGHTS   OF  WAR  AND   PEACE  295 

just  and  lawful.  The  authority  of  Polybius  may  be 
added  to  those  already  named;  for  he  thinks,  that  it 
shews  greater  talent  in  a  general  to  avail  himself  of 
some  favourable  opportunity  to  employ  a  stratagem,  than 
to  gain  an  open  battle.  This  opinion  of  poets,  historians, 
and  philosophers  is  supported  by  that  of  Theologians. 
For  Augustin  has  said  that,  in  the  prosecution  of  a  just 
war,  the  justice  of  the  cause  is  no  way  affected  by  the 
attainment  of  the  end,  whether  the  object  be  accom- 
plished by  stratagem  or  open  force,  and  Chrysostom,  in 
his  beautiful  little  treatise  on  the  priestly  office,  observes, 
that  the  highest  praises  are  bestowed  on  those  generals, 
who  have  practised  successful  stratagems.  Yet  there  is 
one  circumstance,  upon  which  the  decision  of  this  ques- 
tion turns  more  than  upon  any  opinion  even  of  the  high- 
est authority,  and  that  is,  whether  stratagem  ought  to  be 
ranked  as  one  of  those  evils,  which  are  prohibited  under 
the  maxim  OF  NOT  DOING  EVIL,  THAT  GOOD  MAY  ENSUE,  or 
to  be  reckoned  as  one  of  those  actions,  which,  though 
evil  IN  THEMSELVES,  may  be  so  modified  by  particular  oc- 
casions, as  to  lose  their  criminality  in  consideration  of 
the  good,  to  which  they  lead. 

VII.  There  is  one  kind  of  stratagem,  it  is  proper  to 
remark,  of  a  negative,  and  another  of  a  positive  kind. 
The  word  stratagem,  upon  the  authority  of  Labeo,  taken 
in  a  negative  sense,  includes  such  actions,  as  have  nothing 
criminal  in  them,  though  calculated  to  deceive,  where 
any  one,  for  instance,  uses  a  degree  of  dissimulation  or 
concealment,  in  order  to  defend  his  own  property  or  that 
of  others.*  So  that  undoubtedly  there  is  something  of 
harshness  in  the  opinion  of  Cicero,  who  says  there  is 
no  scene  of  life,  that  will  allow  either  simulation,  or  dis- 
simulation to  be  practised.  For  as  you  are  not  bound 
to  disclose  to  others  all  that  you  either  know  or  intend; 
it  follows  that,  on  certain  occasions,  some  acts  of  dissim- 
ulation, that  is,  of  concealment  may  be  lawful.  This  is 
a  talent,  which  Cicero,  in  many  parts  of  his  writings, 
acknowledges  that  it  is  absolutely  necessary  for  states- 
men to  possess.  The  history  of  Jeremiah,  in  the  xxxviiith 
chapter  of  his  prophecy,  furnishes  a  remarkable  instance 
of  this  kind.  For  when  that  prophet  was  interrogated 

*Thus  when  a  ship  makes  an  appearance  of  mounting  more  guns 
than  she  really  carries,  in  order  to  deter  an  enemy  from  attacking 
her,  this  may  be  considered  as  one  of  those  negative  stratagems,  or 
stratagems  of  dissimulation,  to  which  our  author  alludes. 


296  HUGO   GROTIUS 

by  the  king,  respecting  the  event  of  the  siege,  he  pru- 
dently, in  compliance  with  the  king's  orders,  concealed 
the  real  matter  from  the  nobles,  assigning  a  different, 
though  not  a  false  reason  for  the  conference,  which  he 
had  had.  In  the  same  manner,  Abraham  called  Sarah, 
his  sister,  an  appellation  used  familiarly  at  that  time  to 
denote  a  near  relation  by  blood,  concealing  the  circum- 
stance of  her  being  his  wife. 

VIII.  A  stratagem  of  a  positive  kind,  when  practised 
in  actions,  is  called  a  feint,  and  when  used  in  conversa- 
tion it  receives  the  name  of  a  lie  or  falsehood.  A  dis- 
tinction is  made  by  some,  between  these  two  kinds  of 
stratagems,  who  say,  that  words  are  signs  of  our  ideas, 
but  actions  are  not  so.  But  there  is  more  of  truth  in  the 
opposite  opinion,  that  words  of  themselves  unaccompanied 
by  the  intention  of  the  speaker,  signify  nothing  more  than 
the  inarticulate  cries  would  do  of  any  one  labouring  under 
grief,  or  any  other  passion:  which  sounds  come  under 
the  denomination  of  actions,  rather  than  of  speech.  But 
should  it  be  said  that  being  able  to  convey  to  others 
the  conceptions  of  his  mind,  by  words  adapted  to  the  pur- 
pose, is  a  peculiar  gift  of  nature,  by  which  man  is  dis- 
tinguished from  other  parts  of  the  animated  creation,  the 
truth  of  this  cannot  be  denied. 

To  which  we  may  add  that  such  communication  may 
be  made  not  only  by  words,  but  by  signs  or  gestures, 
like  those  used  to  the  dumb;  it  makes  no  difference, 
whether  those  signs  or  gestures  have  any  natural  connec- 
tion with  the  thing  they  are  intended  to  signify,  or 
whether  such  a  connection  is  only  assigned  to  them  by 
custom.  Equivalent  to  such  signs  or  gestures  is  hand- 
writing, which  may  be  considered,  as  a  dumb  language, 
deriving  its  force  not  merely  from  the  words  used,  and 
the  particular  form  of  the  letters,  but  from  the  real  in- 
tention of  the  writer,  to  be  gathered  from  thence:  —  to 
be  gathered  either  from  the  resemblance  between  the 
characters  and  the  intentions,  as  in  the  Egyptian 
hieroglyphics,  or  from  pure  fancy,  as  among  the  Chi- 
nese. 

Here  likewise  another  distinction  is  necessary  to  be 
applied  in  the  same  manner,  as  was  done  before,  in  order 
to  remove  all  ambiguity  in  using  the  term  of  THE  LAW 
OF  NATIONS.  For  it  was  there  said,  that  the  laws  estab- 
lished by  independent  and  separate  states,  whether  or  no 
those  laws  implied  any  mutual  obligations,  were  denomi- 


THE   RIGHTS   OF   WAR  AND   PEACE  297 

nated  the  LAW  OF  NATIONS.*  So  that  words,  gestures, 
and  signs,  made  use  of  to  convey  a  meaning,  imply  an 
obligation,  in  all  the  persons  concerned,  to  receive  and 
employ  them  in  their  common  acceptation.  But  the  em- 
ployment of  OTHER  MEANS,  coming  under  NONE  OF  THOSE 
DESCRIPTIONS,  cannot  be  construed  into  a  violation  of  any 
social  contract,  although  some  may  be  deceived  thereby. 
It  is  the  REAL  NATURE  of  the  actions  that  is  here  spoken 
of,  and  not  the  ACCIDENTAL  circumstances  attending  them : 
such  actions  for  instance,  as  occasion  no  mischief;  or  if 
they  do  so,  there  is  no  guilt,  where  there  is  no  treacher- 
ous design. 

We  have  an  instance  of  the  former  kind  in  the  conduct 
of  our  Saviour,  who,  on  the  way  to  Emmaus,  pretended 
to  the  disciples,  that  he  was  going  further;  here  was  a 
harmless  stratagem,  unless  we  interpret  the  words,  as 
expressive  of  his  intention  to  have  gone  further,  if  he 
had  not  been  prevented  by  their  efforts  and  entreaties 
to  detain  him.  And  in  another  part  of  the  sacred  history 
it  is  said,  that  he  intended  to  have  passed  by  the  Apostles 
on  the  sea,  that  is,  he  intended  to  have  done  it,  had  he 
not  been  so  earnestly  importuned  by  them  to  go  into  the 
ship.  There  is  another  instance  too  in  the  conduct  of 
Paul,  who  circumcised  Timothy,  though  he  knew  the 
Jews  would  conclude  from  thence,  that  the  ordinance  of 
circumcision,  which  in  reality  had  been  abolished,  was 
still  binding  upon  the  descendants  of  Israel,  and  that 
Paul  and  Timothy  were  of  the  same  opinion.  Whereas 
Paul  had  no  such  intention,  but  only  hoped,  by  that 
means,  to  open  for  himself  and  Timothy  a  way  to  more 
familiar  intercourse  with  the  Jews.  Neither  could  an 
ordinance  of  that  kind,  when  the  divine  obligation  was 
repealed,  any  longer  be  deemed  of  such  importance,  nor 
could  the  evil  of  a  temporary  error,  resulting  from  thence, 
and  afterwards  to  be  corrected,  be  regarded  as  equivalent 
to  the  opportunity,  which  Paul  thought  to  gain,  of  mak- 
ing it  conducive  to  the  introduction  of  Christian  truth. 

*  Besides  the  NECESSARY  law  of  nations,  which  is  EQUALLY,  and  at  ALL 
TIMES  binding  upon  ALL  states,  there  is  a  POSITIVE  law  of  nations, 
consisting  of  THE  VOLUNTARY,  THE  CONVENTIONAL  and  THE  CUSTOMARY 
law.  All  of  which  « proceed  from  the  will  of  nations, — the  VOLUN- 
TARY from  their  presumed  consent,  the  CONVENTIONAL  from  an  express 
consent,  and  the  CUSTOMARY  from  tacit  consent:  and  as  there  can  be 
no  other  mode  of  deducing  any  law  from  the  will  of  nations,  there 
are  only  these  three  kinds  of  POSITIVE  LAW  OF  NATIONS.  » — Vattel, 
Prelim.  Sect.  27. 


298  HUGO   GROTIUS 

The  Greek  Fathers  have  given  the  name  of  ECONOMY, 
or  MANAGEMENT  to  stratagems  of  this  kind.  On  this  sub- 
ject there  is  an  admirable  sentiment  in  Clement  of  Alex- 
andria, who,  in  speaking  of  a  good  man,  says  that  (<he 
will  do  many  things  for  the  benefit  of  his  neighbour 
alone,  which  he  would  not  otherwise  have  undertaken.0 

One  of  these  stratagems  was  practised  by  the  Romans, 
who,  during  the  time  that  they  were  besieged  in  the 
Capitol,  threw  some  loaves  of  bread  into  the  enemy's 
camp,  that  it  might  not  be  supposed  they  were  pressed 
by  famine.  The  feigned  flight,  which  Joshua  ordered 
his  people  to  make,  to  assist  him  in  his  designs  upon 
Ai,  affords  an  instance  of  a  stratagem  of  the  second 
kind;  the  ensuing  mischiefs  of  which  may  be  considered, 
as  some  of  the  effects  of  lawful  war.  The  ORIGINAL 
DESIGN  of  that  pretended  flight  does  not  at  all  affect  the 
question.  The  enemy  took  it  for  a  proof  of  fear;  and 
he  was  at  liberty  to  do  so,  without  debarring  the  other 
of  his  right  to  march  this  way,  or  that,  with  an  acceler- 
ated or  retarded  motion,  with  a  shew  of  courage,  or  an 
appearance  of  fear,  as  he  might  judge  it  most  expe- 
dient. 

History  furnishes  us  with  innumerable  examples  of 
deceptions  practised  with  success  upon  an  enemy,  by 
assuming  his  arms,  ensigns,  colours,  or  uniforms;  all 
which  may  be  justified  upon  the  same  principle.  For  all 
these  are  actions,  which  any  one  may  avail  himself  of 
at  his  pleasure,  by  departing  from  the  usual  course  of 
his  military  system.  For  such  points  of  discipline  and 
system  depend  upon  the  will  and  fancy  of  the  military 
commanders  in  each  state,  rather  than  upon  any  invari- 
able custom,  equally  binding  upon  all  nations. 

IX.  Those  signs,  by  which  the  daily  intercourse  of  life 
is  maintained,  form  a  subject  of  more  weighty  discussion, 
with  which  the  consideration  of  lies  or  falsehood  is  nec- 
essarily interwoven. 

All  stratagems  of  this  kind  are  so  direct  a  violation  of 
all  moral  principle,  both  in  their  nature  and  conse- 
quences, that  almost  every  page  of  the  revealed  will  of 
God  declares  their  condemnation.  Solomon  describes  a 
righteous,  that  is,  a  good  man,  as  one,  who  holds  every 
false  word  in  detestation,  deprecating  the  least  appear- 
ance of  deception:  and  the  Apostle's  injunction  accords 
with  these  sentiments,  instructing  his  disciples  not  to  lie 
to  one  another. 


THE   RIGHTS  OF   WAR  AND   PEACE  299 

Nor  is  it  in  the  high  standard  of  perfection  alone,  which 
the  divine  records  present,  that  such  a  recommendation 
of  fair,  open,  and  sincere  dealing-  is  to  be  found.  It  is 
the  theme  of  praise  with  poets  and  philosophers,  and  the 
angry  hero  of  the  Grecian  poet  declares,  that  he  detests 
the  man,  as  an  infernal  being,  who  utters  one  thing  with 
his  tongue,  while  he  conceals  another  in  his  heart.  But 
making  some  allowance  for  poetic  fiction  —  we  find  even 
the  grave,  sober,  and  discerning,  Stagirite  describing 
falsehood,  as  a  vile,  and  abominable  refuge,  and  paint- 
ing truth  as  a  lovely  object,  that  must  extort  the  warm- 
est praise. 

These  are  all  great  and  high  authorities  in  favour  of 
open  dealing.  Yet  there  are  names  of  no  less  weight, 
both  among  sacred  and  profane  writers,  whose  opinions 
are  a  vindication  of  stratagems,  when  used  upon  PROPER 
occasions.  One  writer  speaks  of  a  case,  where  stratagem 
may  be  used,  even  for  the  benefit  of  the  person,  on 
whom  it  is  practised,  and  adduces  the  instances  of  a 
physician,  who,  by  means  of  a  deception,  overcame  the 
perverseness  of  a  patient,  and  wrought  a  salutary  cure. 

X.  To  reconcile  such  a  variety  of  discordant  opinions, 
it  may  be  necessary  to  devise  some  way  of  examining 
falsehood  both  in  its  more  extensive,  and  more  confined 
acceptation.  Nor  is  speaking  an  untruth,  UNAWARES,  to 
be  considered  in  the  nature  of  a  lie,  but  the  falsehood, 
which  comes  within  the  limits  here  defined,  is  the  KNOWN 
and  DELIBERATE  UTTERANCE  of  any  thing  contrary  to  our 
real  conviction,  intention,  and  understanding. 

Words,  or  signs,  importing  the  same  meaning  as  words, 
are  generally  taken  for  conceptions  of  the  mind,  yet  it  is 
no  lie  for  any  man  to  utter  a  falsehood,  which  he  believes 
to  be  true ;  but  the  propogation  of  a  truth,  which  any  one 
believes  to  be  false,  IN  HIM  amounts  to  a  lie.  There  must 
be  in  the  use  of  the  words  therefore  an  INTENTION  to  de- 
ceive, in  order  to  constitute  a  falsehood  in  the  proper  and 
common  acceptation.  Consequently,  when  any  one  single 
word,  or  the  whole  tenour  of  a  discourse,  admits  of  more 
significations  than  one,  either  by  the  use  of  some  popular 
phrase,  some  term  of  art,  or  intelligible  figure  of  speech, 
in  that  case  if  the  speaker's  intention  correspond  with  any 
one  of  those  meanings,  he  cannot  be  charged  with  using 
falsehood,  although  it  is  possible  that  a  hearer  may  take 
his  words  in  a  very  different  sense.  It  is  true  that  using 
such  an  ambiguous  method  of  speaking  on  ALL  OCCASIONS 


300  HUGO   GROTIUS 

is  not  to  be  approved  of,  though  there  are  particular  cir- 
cumstances under  which  it  may  be  reconciled  with  honour 
and  justice.  In  communicating  knowledge,  for  instance, 
there  is  no  harm  in  using  a  metaphor,  an  irony,  or  an 
hyperbole,  figures  of  speech,  tending  either  to  adorn  or  to 
elucidate  a  subject.  There  are  cases  too,  where  by  this 
doubtful  mode  of  expression  it  may  be  proper  to  avoid 
an  urgent  and  impertinent  question.  There  is  an  instance 
of  the  former  kind  in  our  Saviour's  saying,  that  "our 
friend  Lazarus  sleepeth,"  where  the  disciples  understood 
him,  as  if  he  were  speaking  of  the  refreshing  rest  of  an 
ordinary  sleep :  and  when  he  spoke  of  restoring  the  temple, 
which  he  meant  his  own  body,  he  knew  that  the  Jews  ap- 
plied what  he  said  to  the  MATERIAL  EDIFICE  of  the  Temple. 
In  the  same  manner  he  frequently  addressed  the  multi- 
tudes in  parables,  which  they  could  not  understand  by 
barely  hearing,  without  that  docility  of  mind,  and  atten- 
tion, which  the  subject  required.  Profane  history  too 
furnishes  us  with  an  example  of  the  second  kind,  in  the 
conduct  of  Vitellius,  who,  as  Tacitus  informs  us,  gave 
Narcissus  doubtful  and  ambiguous  answers,  in  order  to 
avoid  his  urgent  questions;  as  any  explicit  declaration 
might  have  been  attended  with  danger. 

On  the  other  hand,  it  may  happen  to  be  not  only  cen- 
surable, but  even  wicked  to  use  such  a  manner  of 
speaking,  where  either  the  honour  of  God  or  the  welfare 
of  mankind  is  concerned,  or  indeed  any  matter,  which 
demands  explicit  avowals,  and  open  dealing.  Thus  in 
contracts  every  thing  necessary  to  their  fulfillment  ought 
to  be  fully  disclosed  to  those  concerned.  There  is  an 
apposite  expression  of  Cicero,  who  says,  that  every  de- 
gree of  deception  ought  to  be  banished  from  all  con- 
tracts, and  there  is  in  the  old  Athenian  Laws  a  proverb, 
conformable  to  this,  which  says,  there  must  be  nothing, 
but  open  dealing  in  markets. 

XL  In  strictness  of  speech  such  ambiguity  is  ex- 
cluded from  the  notion  of  a  lie.  The  common  notion  of 
a  lie  therefore  is  something  spoken,  written,  marked,  or 
intimated,  which  cannot  be  understood,  but  in  a  sense 
different  from  the  real  meaning  of  the  speaker.  But  a 
lie,  in  this  stricter  acceptation,  having  some  thing  unlaw- 
ful in  its  very  nature,  necessarily  requires  that  a  dis- 
tinction should  be  made  between  it  and  that  latitude  of 
expression  already  explained.  And  if  this  acceptation  be 
properly  considered,  at  least  according  to  the  opinion 


THE   RIGHTS  OF   WAR  AND   PEACE  301 

prevailing  in  all  nations,  it  seems,  that  no  other  explana- 
tion of  it  is  necessary  to  be  given,  except  that  it  is  a 
violation  of  the  existing  and  permanent  rights  of  the 
person,  to  whom  a  discourse,  or  particular  signs,  are 
directed.  It  is  a  violation  of  the  rights  of  ANOTHER;  for 
it  is  evident,  that  no  one  can  utter  a  falsehood  with  a 
view  to  impose  upon  himself.  The  rights  here  spoken  of 
are  peculiarly  connected  with  this  subject.  They  imply 
that  liberty  of  judgment,  which  men  are  understood,  by 
a  kind  of  tacit  agreement,  to  owe  to  each  other  in  their 
mutual  intercourse.  For  this,  and  this  alone  is  that  mu- 
tual obligation,  which  men  intended  to  introduce,  as  soon 
as  they  began  to  use  speech,  or  other  signs  of  equal 
import.  For  without  such  an  obligation  the  invention  of 
those  signs  would  have  been  perfectly  nugatory.  It  is 
requisite  too,  that  at  the  time  a  discourse  is  made,  such 
a  right  or  obligation  should  remain  in  full  force. 

A  right  may  indeed  have  existed  and  afterwards  have 
become  obsolete,  owing  to  the  rise  or  occurrence  of 
some  new  right :  which  is  the  case  with  a  debt,  that  may 
be  released  by  acquittance,  or  nonperformance  of  a  con- 
dition. It  is  farther  requisite,  to  constitute  a  VIOLATION 
OF  THIS  RIGHT,  that  the  ensuing  injury  should  immedi- 
ately affect  the  PERSON  ADDRESSED:  as  in  contracts,  there 
can  be  no  injustice,  but  what  affects  one  of  the  parties, 
or  persons  concerned. 

And  perhaps  under  the  head  of  this  right,  it  may  not 
be  improper  to  assign  a  place  to  that  TRUE  SPEAKING, 
which  Plato,  following  Simonides,  classes  with  justice, 
in  order  to  form  a  more  striking  contrast  with  that  false- 
hood, so  often  prohibited  in  Scripture,  by  the  name  of 
false  witness  to,  or  against,  our  neighbour,  and  which 
Augustin,  in  defining  a  lie,  calls  an  intention  to  deceive. 
Cicero  also  in  his  offices  lays  down  truth,  as  the  basis  of 
justice. 

The  right  to  a  discovery  of  the  whole  truth  may  be  re- 
linquished by  the  express  consent  of  the  persons,  who  are 
engaged  in  a  treaty:  the  one  may  declare  his  intention 
not  to  disclose  certain  points,  and  the  other  may  allow  of 
this  reserve.  There  may  be  also  a  tacit  presumption, 
that  there  are  just  reasons  for  such  reserve  which  may 
perhaps  be  necessary  out  of  regard  to  the  rights  of  a 
third  person:  rights  which,  in  the  common  judgment  of 
all  sober  men,  may  be  sufficient  to  counterbalance  any 
obligation  in  either  of  the  persons  engaged  in  the  treaty 


302  HUGO   GROTIUS 

to  make  a  full  disclosure  of  his  views  and  sentiments. — 
These  principles,  duly  considered,  will  supply  many  in- 
ferences to  reconcile  any  seeming  contradiction  in  the 
opinions,  that  have  been  advanced. 

XII.  In  the  first   place,   many  things    may  be    said  to 
madmen,    or    children,    the    LITERAL    MEANING    of    which 
may  not   be    true,  without   incurring   the  guilt  of  wilful 
falsehood.     A  practice  which  seems  to  be  allowed  by  the 
common  sense  of   all   mankind.     Quintilian,  speaking  of 
the   age  of   puerility,  says,  it   is   a   period  of  life,  when 
many  useful  truths  may  be  taught  in  the  dress  of  fiction. 
— Another  reason  given  is,  that  as  children  and  madmen 
possess  no  perfect  power  of  judging,  impositions  of  that 
kind  can  do  no  injury  to  their  rights,  in  such  respects. 

XIII.  Secondly,    when   a   conversation   is  addressed   to 
any  one,  who   is  not    thereby  deceived,  although  a  third 
person,  not  immediately  addressed,  may  misconceive  the 
matter,    there   is   no   wilful   falsehood    in    the   case.     No 
WILFUL  FALSEHOOD  towards  the  person  addressed :  because 
he  feels  no  greater  injury  from  thence,    than  an   intelli- 
gent hearer  would  do  from  the  recital  of  a  fable,  or  the 
use  of   a  metaphor,    irony,    or   hyperbole  in   speech.      It 
cannot  be  said  that  an  injury  is  done  to  the  person,  who 
accidentally  and   cursorily   hears   a  matter,    and   miscon- 
ceives it:  for  being  no   way  concerned,  there   is  no  obli- 
gation due  to  him.     As  he  misconceives  a  thing  addressed 
to  ANOTHER,  and  not  to  HIMSELF,  he  must   take  upon   his 
own   head   all    the   consequences    of    the    mistake.     For, 
properly  speaking,  the  discourse,   WITH  RESPECT  TO  HIM,  is 
no  discourse,  but  an  inexpressive  sound  that  may  signify 
one  thing  as  well  as  another.     So  that  there  was  nothing 
wrong  in  the   conduct  of  Cato   the  Censor,    who   made  a 
false  promise    of   assistance    to   his   confederates,    nor  in 
that  of  Flaccus,  who  informed    others  that  Aemilius  had 
taken    the  enemy's  city  by   storm,    although   the    enemy 
were  deceived   by  it.     Plutarch   mentions  an  instance  of 
the  same   kind  in   the  life   of  Agesilaus.     Here    no  com- 
munication was  made  to  the  enemy,  and  the  prejudice  he 
sustained   was    an   accidental   thing  no  way  unlawful  in 
itself,  either  to  be  wished  for  or  procured. 

XIV.  In  the   third   place,   whenever  it  is  certain   that 
the     person,    on    whom    a    deception    is    practised,    dis- 
covers that  the  intent  of  it  was  to  do  him  a   service;  he 
will   not  feel   it  as  a    grievance,  nor    can  it  come    under 
the  strict  denomination  of  a  lie  or  falsehood.     It    will  be 


THE   RIGHTS  OF  WAR  AND   PEACE  303 

no  more  an  INJURY,  than  it  would  be  a  THEFT  in  any  one, 
presuming  upon  an  owner's  consent,  to  take  something 
belonging  to  that  owner,  in  order  to  convert  it  to  his 
use  in  a  very  beneficial  way.  For  in  cases  of  notorious 
certainty,  a  PRESUMPTION  may  be  taken  for  express  con- 
sent. But  it  is  evident  that  no  man  would  CONSENT  to 
receive  an  INJURY. 

From  hence  it  appears,  that  a  person  is  guilty  of  no 
treachery,  who  uses  unfounded  or  fictitious  motives  to 
console  a  friend  in  distress,  as  Arria  did  to  Paetus  upon 
the  death  of  his  son,  of  which  there  is  an  account  in 
Pliny's  Epistles,  or  in  a  general,  who  in  a  perilous  situ- 
ation should  avail  himself  of  false  intelligence,  to  encour- 
age his  troops,  by  which  perhaps  a  victory  might  be 
gained. 

It  may  be  observed  likewise,  that  the  injury  done  to 
the  freedom  of  judgment  is,  in  such  a  case,  of  less  con- 
sequence, because  it  is  but  momentary,  and  the  real  fact 
is  soon  discovered. 

XV.  There  is  a  fourth  case,  which  bears  a  near  affin- 
ity to  those  above  mentioned,  and  that  is,  when  any  one, 
possessing    preeminent    authority,    orders    another,    in    a 
subordinate  capacity,  to  execute  some  device  or  stratagem, 
conducive   either  to  his  individual,  or  to  the  public  wel- 
fare.    Which  Plato  seems  to  have  had  particularly  in  view, 
in  allowing  those  in  authority   to   avail  themselves  of  pre- 
texts, or  stratagems.     The   same  writer  is  very  correct  in 
his  notion  of  not  making  such  a  device  a  characteristic  of 
that  authority,  which  belongs  to  the  supreme  being.    For 
all  such  devices,  however  justifiable  they  may  be  in  CER- 
TAIN CASES,  strongly  betray  that  imperfection,   which  is 
inseparable  from  all  human  systems. 

The  stratagem,  which  Joseph  employed  to  obtain  fur- 
ther discoveries  without  making  himself  known  to  his 
brethren,  is  much  commended  by  Philo,  as  a  mark  of 
great  policy,  when,  contrary  to  the  convictions  and  feel- 
ings of  his  own  mind,  he  accused  them  of  being  spies, 
and  afterwards  charged  them  with  theft.  It  was  by  a 
stratagem  of  the  same  kind,  that  Solomon  gave  proof  of 
his  inspired  wisdom,  when  he  used  the  FICTITIOUS  threat 
of  dividing  the  living  child  in  order  to  discover  the  real 
mother. 

XVI.  The   fifth  case,   which   allows  a  stratagem  to  be 
practised,  is  that,  where   it  may  be  the   ONLY   means   of 
saving  the  life  of  an  innocent  person,  of  obtaining  some 


304  HUGO   GROTIUS 

object  of  equal  importance,  or  of  diverting  another  from 
the  perpetration  of  some  horrid  design.  The  heathen 
poet  has  given  a  beautiful  illustration  of  this  in  his  praises 
of  Hypermnestra,  whose  conduct  he  calls  <(  a  splendid  strat- 
agem, ennobling  the  virgin  to  all  posterity.® 

XVII.  It  is  evident  that  many  writers  of  acknowledged 
wisdom,    and    sober    judgment,    have    carried    the    point 
farther  than  has    been  done   in  this   treatise,  in  allowing 
the  use  of  false  representations  to  an  enemy.     In   cases, 
where  public  enemies  are  concerned,  they  maintain,  that 
it  is  lawful  to  deviate  from  those  strict  rules  of  avowing 
and  disclosing   all   our  intentions,  which    they  prescribe, 
on  all  other  occasions.     Such  is  the  opinion  of  Plato  and 
Xenophon  among  the   Greeks,  of   Philo  among  the  Jews, 
and  Chrysostom  among  Christians      It   may  not  perhaps 
be  amiss  to  cite,  in  this  place,  the   message   sent  by  the 
men  of  Jabesh  Gilead  to  the  Ammonites,  by  whom  they 
were  besieged,  and  also  that  of  the  prophet  Elisha,  and  at 
the  same  time   to  mention   the  conduct  of  Valerius  Lae- 
vinus,  who  boasted  of  having  killed  Pyrrhus. 

The  third,  the  fourth  and  fifth  observations  above  made, 
may  be  illustrated  from  what  is  said  by  Eustratus,  Arch- 
bishop of  Nice,  <(An  able  and  upright  counsellor  is  not 
obliged  to  disclose  the  whole  truth:  for  there  may  be 
occasions,  when  it  may  be  necessary  for  him  to  recom- 
mend the  means  of  deceiving  an  enemy,  or  to  employ 
some  stratagem  towards  a  friend,  where  it  may  turn  to 
his  advantage.® 

XVIII.  What  has  been  said  of  false  speaking  must  be 
understood  as   applied  to   affirmative  declarations,  which 
can  be  prejudicial  to  no  persons,  but  public  enemies:  it 
can   by   no   means   be    taken    to   include   promises.     For 
promises  confer  upon  the  person,  to  whom  they  are  made, 
a  peculiar  right   to  claim   their  full   performance.     And 
this  is  a  rule,  which  must  take  place,  even  between  pub- 
lic enemies;   a  rule  to   which  existing   hostilities  are  not 
allowed  to  form  an  exception.     It  is  a  maxim  proper  to 
be  enforced  in  TACIT,  as  well  as  in   EXPRESS  agreements: 
as  when  a  parley  or   conference   is   demanded,  there  is 
always  an  IMPLIED  promise,  that   both    sides   shall  attend 
it  with  perfect  safety.     But  these  are  points  reserved  for 
the  discussion  of  another  part  of  this  treatise. 

XIX.  It   will   be  necessary   to    repeat   an    observation 
made  before,  with  respect  to  oaths,  both   of  the  affirma- 
tive and  promissory  kind,  where  it  was  maintained  that 


THE   RIGHTS   OF   WAR  AND   PEACE  305 

they  exclude  all  exceptions,  all  mental  reservations  to- 
wards the  person,  to  whom  they  are  made,  being  regarded 
not  merely  as  a  solemn  transaction  with  that  individual, 
but  as  a  stedfast  appeal  to  God.  Such  an  appeal  to  the 
supreme  being  demands  the  performance  of  an  oath,  even 
if  it  gave  the  individual  no  right  to  the  same. 

At  the  same  time  it  was  observed,  that  a  sworn  dec- 
laration is  not  like  one  of  any  other  kind,  where  an 
application  of  terms  different  from  their  usual  meaning 
may  supply  the  speaker  with  an  excuse  for  evading  their 
import.  But  truth  requires  every  declaration  and  promise 
to  be  made  in  terms,  which  it  is  supposed  that  every  man 
of  integrity  and  clear  judgment  will  understand,  spurn- 
ing at  the  impious  thought,  that  men  may  be  deceived 
by  oaths,  as  children  are  by  toys  and  trifles. 

XX.  Some  nations  and  individuals  indeed  have  rejected 
the  use  of  those  stratagems,  which    even    the  law  of  na- 
ture allows  to  be   employed   as   a  means   of   self-defence 
against  an  enemy.     But  they  did  so,  not  from  any  opin- 
ion of  their  unlawfulness,  but   from   a  noble  loftiness  of 
mind,  and  from  a  confidence  in  their  own  strength.    Ae- 
lian  has  preserved   a  saying    of    Pythagoras,  w  that  there 
are  two  things,  in  which  man  approaches  nearest  to  God, 
in  always  speaking  the  truth,  and  doing  good  to  others.* 
Aristotle,  somewhere  in  his  Ethics,  calls  speaking  truth, 
the  freedom  of  a  great  soul,  and  Plutarch  says,  that  false- 
hood is  the  qualification  of  a  slave.     But  an  adherence  to 
truth,  in  simplicity  of  heart,  is  not  the  only  duty  required 
of  Christians,  in  this  respect,  they  are  commanded  to  ab- 
stain from  all  vain  discourse,  as  having  for  their  example 
him,  in  whose  mouth  there  was  found  no  guile. 

XXI.  With  respect  to  the  actions  of  men,  there  is  an- 
other rule    which   may  properly   come   under  this  head, 
and  that   is,   the    unlawfulness   of  urging   or   persuading 
any  one  to  do  an  unlawful  act.    For  instance,  no  subject 
has   a   right  to   lift   his   hand   against   his    sovereign,  to 
deliver  up  a   town   without   public    authority,  or   to  des- 
poil his  neighbour  of   his  goods.     It  would  be  unlawful 
then  to  encourage    the    subject  of  an  enemy,  as  long  as 
he  continues  his    subject,  to   do  any  of   these  acts.     For 
the  person,  who  urges  another  to  do  a  wicked  act,  makes 
himself  a   partner  in   his  guilt.     Nor   can  it  be   received 
as  a  just  answer,  that  urging  a  subject   to  the  perpetra- 
tion of  such  a  deed  is  nothing  more  than  employing  the 
lawful  means  of    destroying   an    enemy.     For   though   it 

30 


306  HUGO   GROTIUS 

may  be  necessary  and  just  to  destroy  him,  if  possible, 
yet  that  is  not  the  way,  in  which  it  should  be  done. 
Augnstin  has  well  observed,  that  it  makes  no  difference 
whether  any  one  should  commit  a  crime  himself,  or 
employ  another  as  his  instrument. 

But  employing  the  spontaneous  offers  of  a  deserter  is 
not  contrary  to  the  laws  of  war,  and  is  a  very  dif- 
ferent action  from  that  of  seducing  a  subject  from  his 
allegiance. 


WAR  AND  PEACE 

This  is  a  frontispiece  to  a  Latin  edition  of  Grotius'  De  Jure 
Belli  ac  Pads,  published  at  Amsterdam  in  1670.  It  is  intended 
to  be  symbolical  of  War  and  Peace  acting  under  the  direction 
of  Justice,  these  three  figures  forming  the  central  group. 


CHAPTER  II. 

IN   WHAT    MANNER    THE    LAW   OF   NATIONS    RENDERS 

THE  PROPERTY  OF  SUBJECTS  ANSWERABLE  FOR 

THE   DEBTS   OF    SOVEREIGNS.     THE 

NATURE  OF  REPRISALS. 

No  one  but  an  heir  bound  by  the  act  of  another  —  Property  of  sub- 
jects answerable  for  the  debts  of  sovereigns,  according  to  the  law 
of  Nations — Capture  of  persons  and  property  after  satisfaction 
refused  by  the  aggressor — Reprisals  —  Personal  safety  of  subjects 
—  Distinction  made  by  the  law  of  Nations  in  this  respect. 

I.  THE  rights  accruing  from  the  law  of  Nations  are 
the  points  next  to  be  considered,  which  may  be  referred 
either  to  wars  in  GENERAL,  or  to  those  of  a  PARTICULAR 
description. 

Wars  in  GENERAL  are  those,  which  properly  first  come 
tinder  notice. 

By  the  LITERAL  law  of  nature,  no  one  is  bound  by  the 
actions  of  another,  except  the  person,  who  succeeds  to 
his  property.  For  the  introduction  and  establishment 
of  property  introduced  and  established  also  the  power  of 
transferring  it  with  all  its  incumbrances.  The  Emperor 
Zeno  however  pronounces  it  repugnant  to  natural  justice 
for  one  man  to  be  molested  for  the  debts  of  another. 
A  principle,  which  gave  rise  to  the  distinctions  in  the 
Roman  law,  that  the  wife  could  not  be  sued  for  her 
husband,  nor  the  husband  for  his  wife,  nor  a  son  for  his 
father,  nor  a  father  or  mother  for  their  son.  Nor,  as 
Ulpian  clearly  states  it,  could  individuals  be  answerable 
for  the  debts  of  the  community,  and  more  especially  if 
that  community  be  possessed  of  property.  Indeed  if 
that  were  not  the  case  individuals  could  only  be  obliged 
to  contribute  their  due  proportion,  as  members  of  that 
community. 

Seneca  says,  "if  any  one  lends  money  to  my  country, 
I  am  not  to  be  considered  as  his  debtor,  nor  to  take  the 
debt  upon  myself,  though  I  am  bound  to  pay  my  due 
proportion  of  it.}>  There  was  a  special  provision  made 
in  the  Roman  law,  that  one  peasant  should  not  be  bound 
for  the  debts  of  another,  and  it  is  laid  down  as  a  rule, 

(307) 


3o8  HUGO   GROTIUS 

that  the  goods  of  one  person  shall  not  be  distrained  for 
the  debts  of  another,  even  if  they  be  public  debts;  and 
in  Justinian's  Novels,  pledges  for  others  are  forbidden, 
and  the  cause  assigned  for  it  is,  because  it  is  unreason- 
able that  one  person  should  incur  the  debt,  and  another 
be  bound  to  the  payment  of  it,  an  exaction  to  which  the 
name  of  ODIOUS  is  given.  King  Theodoric  Cassiodor, 
calls  it  a  shocking  licence  for  one  man  to  be  detained 
as  a  pledge  for  another. 

II.  Although  in  the  preceding  observations  there  may 
be  a  great  deal  of  truth,  yet  it  is  possible,  and  indeed 
appears  actually  to  be  the  case,  that  the  voluntary  law  of 
nations  introduced  the  practice  of  rendering  all  the  cor- 
poreal, and  incorporeal  property,  belonging  to  the  subjects 
of  any  state  or  sovereign,  liable  to  the  debts,  which  that 
state  or  sovereign  may  have  incurred,  either  personally, 
or  by  refusing  to  make  such  reparation,  as  may  be  due 
for  the  injuries  and  aggressions,  which  they  have  com- 
mitted. 

Yet  this  is  a  practice,  which  nothing  but  necessity 
could  justify;  for,  on  any  other  ground,  it  would  be 
opening  a  door  to  innumerable  acts  of  wanton  aggression 
and  injustice  against  individuals.  As  the  property  of 
states  and  sovereigns  cannot  often  so  easily  fall  into  an 
enemy's  hand,  as  that  belonging  to  individuals,  who  are 
more  numerous,  and  whose  property  is  consequently  more 
exposed.  So  that  rights  of  this  kind  are  to  be  reckoned 
among  those,  which  Justinian  says,  are  the  offspring  of 
stern  necessity,  the  calamities  of  men  driving  them  to  the 
use  of  such  means. 

But  though  a  practice  like  this  owes  its  introduction 
to  NECESSITY,  it  is  not  so  far  at  variance  with  the  law  of 
nature,  as  to  exclude  CUSTOM  and  TACIT  agreement  from 
having  some  share  in  its  establishment.  For  we  find 
that  sureties  are  bound  by  no  other  tie,  but  that  alone 
of  having  given  their  consent.  Besides,  it  might  easily 
be  supposed,  that  it  was  the  best  method  of  redress 
against  the  subjects  of  another  state,  where  the  aggrieved 
persons  could  not  so  easily  prosecute  their  rights,  or 
obtain  indemnities,  the  claims  or  injuries  of  strangers 
being  but  little  understood,  and  perhaps  still  less  regarded 
in  a  foreign  land. 

Subjects,  being  thus  liable  to  the  loss  of  their  property, 
by  the  conduct  of  their  fellow  subjects,  or  by  that  of  the 
state,  might  sometimes  feel  it  a  hardship,  while  on  other 


THE   RIGHTS  OF  WAR  AND   PEACE  309 

occasions,  it  would  prove  their  greatest  security  against 
aggressions  from  the  subjects  of  another  power. 

That  this  was  a  received  custom  appears  not  only  from 
the  regular  wars,  carried  on  by  one  state  against  another, 
the  rules  observed  in  which  are  often  named  in  the  mani- 
festoes issued  on  such  occasions:  the  form  of  which  may 
be  seen  in  the  first  book  of  Livy,  where  it  is  said,  <(I 
declare  war  against  the  ancient  nations  of  the  Latins,  and 
likewise  against  the  respective  individuals8 ;  and  the  same 
writer,  in  his  thirty  first  book,  informs  us,  that,  upon  the 
question  being  put  to  the  people,  they  were  asked,  whether 
it  was  their  pleasure  that  war  should  be  declared  against 
Philip,  and  against  the  Macedonians,  his  subjects. —  But 
the  same  custom  also  prevailed,  even  before  the  com- 
mencement of  actual  and  open  hostilities  between  two 
states,  when  mutual  acts  of  aggression  by  the  subjects  of 
each  power  could  be  regarded  as  nothing  but  the  eve,  and 
prelude  to  a  declaration  of  war.  The  words  used  by 
Agesilaus  to  Pharnabazus  will  serve  to  elucidate  this 
point:  he  said;  "While  we  were  friends  to  the  king  of 
Persia,  we  treated  him  and  his  subjects  in  a  friendly  man- 
ner: now  we  are  enemies,  you  can  expect  nothing-  from 
us  but  hostilities.  Therefore,  Pharnabazus,  while  you 
chuse  to  continue  a  vassal  to  the  King,  we  wound  him 
through  your  sides." 

III.  The  Athenians  had  a  method  somewhat  like  this  of 
seeking1  redress,  which  they  called  avSpoX^ta^  a  seizure 
of  men's  persons,  which  was  laid  down  in  the  Attic  law 
in  the  following  terms,  <(  if  any  one  has  been  murdered  in 
a  foreign  country,  the  nearest  relatives  of  the  deceased  are 
authorized  to  seize  any  three  subjects  of  that  country,  but 
not  more  than  three,  till  the  perpetrators  of  the  deed  be 
punished,  or  at  least  delivered  up  to  the  hands  of  justice 
for  that  purpose.* 

In  this  case  we  find  that  the  personal  liberty  of  subjects, 
which  may  be  considered  as  a  kind  of  incorporeal  right, 
including  the  right  of  residing  where  they  please,  or  doing 
whatever  they  may  think  proper,  is  made  answerable  for 
the  debt  of  the  state,  who  is  bound  to  punish  the  criminal 
acts  of  her  subjects :  so  that  the  subject  suffers  constraint, 
till  the  state  has  discharged  the  debt,  which  it  is  bound 
to  pay;  and  by  the  payment  of  this  debt  is  meant  the 
punishment  of  the  guilty.  For  although  the  Egyptians, 
as  we  learn  from  Diodorus  Siculus,  maintained  that 
neither  the  person,  nor  liberty  of  any  one  ought  to  be 


310  HUGO   GROTIUS 

bound  or  constrained  for  a  debt,  there  is  nothing  in  it 
repugnant  to  the  law  of  nature,  and  by  the  practice  not 
only  of  the  Greeks,  but  of  other  nations,  the  opposite 
opinion  seems  to  have  been  established. 

Aristocrates,  who  was  contemporary  with  Demosthenes 
had  made  a  motion  for  a  decree,  that  if  any  one  killed 
Charidemus,  it  might  be  lawful  to  seize  him,  wherever 
he  was  to  be  found,  and  that  any  one,  who  attempted  to 
rescue  that  person,  should  be  deemed  an  enemy.  De- 
mosthenes finds  fault  with  many  parts  of  this  decree. 
For  in  the  first  place,  Aristocrates  had  omitted  making 
a  proper  distinction  between  murder  and  a  lawful  put- 
ting to  death,  the  latter  of  which  is  an  act  of  justice  •  in 
the  next  place,  he  has  said  nothing  of  bringing  the  per- 
son to  a  regular  trial:  besides,  it  was  not  the  persons, 
among  whom  the  murder  had  been  committed,  but  those 
who  afterwards  received  the  murderer,  that  were  to  be 
declared  enemies.  Demosthenes  says,  that  "the  regular 
law  prescribes,  that  if  the  persons  in  whose  district  a 
murder  has  been  committed,  neither  punish,  nor  deliver 
up  the  perpetrator  of  the  crime,  three  of  their  peo- 
ple shall  be  liable  to  be  seized.  But  this  decree,  allow- 
ing the  persons  in  whose  district  it  has  been  committed 
to  escape  with  impunity,  not  even  naming  THEM,  passes 
sentence  upon  those,  who  in  conformity  to  the  common 
laws  of  humanity  have  received  the  fugitive,  if  they  do 
not  deliver  him  up,  which  would  be  a  breach  of  the  pro- 
tection due  to  a  suppliant.* 

The  fourth  point,  in  which  he  blames  Aristocrates,  is 
for  having  carried  matters  to  the  extremities  of  open  and 
actual  war,  in  a  case,  where  the  law  only  authorized  the 
seizure  and  detention  of  particular  persons.  Of  these 
arguments,  the  first,  the  second,  and  the  fourth,  are  by 
no  means  destitute  of  weight.  But  the  third  argument, 
unless  it  be  confined  entirely  to  the  circumstance  of  ac- 
cidental death,  or  that  necessarily  occasioned  by  defend- 
ing one's  self,  may  be  regarded  more  as  an  oratorical 
flourish  than  a  just  and  solid  reason.  For  the  law  of 
nations  extends  the  privileges,  and  character  of  suppli- 
ants to  those  only,  who  have  left  their  country  on  ac- 
count of  misfortune,  and  not  owing  to  crimes.  Indeed 
if  the  law  of  nations  made  no  such  distinction,  the 
persons,  among  whom  a  crime  has  been  committed,  and 
who  may  be  suspected  of  having  countenanced  the 
deed,  and  those  who  barely  refuse  to  punish  or  deliver 


THE    RIGHTS  OF   WAR  AND   PEACE  311 

up  the  guilty  fugitive,  would  be  upon  an  equal  footing 
as  to  right.  So  that  it  was  either  USAGE,  which  GRADU- 
ALLY introduced  the  above  interpretation  of  that  law,  to 
which  Demosthenes  appeals,  or  it  was  afterwards  more 
EXPRESSLY  ESTABLISHED,  in  order  to  avoid  such  cavils. 
For  no  one  can  deny  the  truth  of  one  of  these  positions 
who  has  attended  to  the  observation  of  Julius  Pollux, 
that  "the  seizure  and  detainder  of  persons  can  be  en- 
forced, whenever  a  power  cannot  obtain  the  surrender 
of  fugitive  murderers,  which  they  demand.  In  this  case 
the  aggrieved  power  or  individual  may  seize  and  detain 
any  three  of  the  people  belonging  to  the  state,  which  re- 
Euses  to  make  that  surrender.* 

It  is  upon  the  same  principle  that  any  power  may  de- 
tain the  subjects  of  another  state,  in  order  to  procure 
the  release  of  any  subjects  of  her  own,  unjustly  seized, 
and  imprisoned  by  that  state. 

IV.  Another  method  of  obtaining  redress  for  any  vio- 
lation  of  persons,  or   property  is    by  having  recourse  to 
what,  in   modern  language,  are   called    REPRISALS,  which 
the  Saxons  and   Angles   denominated  WITHERNAM,  and  to 
which  the  French  gave  the  name  of  LETTERS  OF  MARQUE, 
and  those  were  usually  obtained  from  the  crown. 

V.  It  is  generally  understood  that  recourse  may  be  had 
to  this  method  of  redress  not  only  against  a  foreign  ag- 
gressor, but  also  against   a  debtor,  if    justice   cannot  be 
obtained  in   due    time:    but    in    NOTORIOUS    cases,  which 
admit  of  no  doubt,  this  right  may  be   enforced  even  be- 
yond the  strict  letter  of  the  law.     For  even  in  DOUBTFUL 
matters,  the    presumption   will    always   be    in    favour   of 
judges  appointed  by  public  authority.     For  it  is  unlikely 
that    they    should    GREATLY,    or    WANTONLY    exceed    their 
power ;  especially  when,  if  so  inclined,  they  have  not  the 
same  means  of  enforcing  their  decrees  against  foreigners, 
as  against  their  fellow  subjects.     Indeed  even  in  disputes 
between  subjects  of  the  same  country,  they  cannot  annul 
a    just    debt.     Paulus,    the    Lawyer,    says    that    a    REAL 
DEBTOR,  though  discharged,  owing  to  some  informality  or 
inability  of  the  law  to  enforce   payment,  still    remains  a 
debtor  according  to  the  law  of  nature. 

And  when,  in  consequence  of  a  judicial  sentence,  a 
creditor,  under  pretext  of  seizing  his  own  property,  had 
taken  from  a  debtor  something  which  did  not  belong  to 
him  though  it  was  in  his  possession:  upon  the  discharge 
of  the  debt,  a  doubt  arising  whether  the  thing  should  be 


312  HUGO   GROTIUS 

restored  to  the  debtor,  Scaevola  maintained  that  it  cer- 
tainly ought  to  be  restored. 

There  is  a  difference  between  the  two  cases.  For  sub- 
jects, AS  SUCH,  cannot  make  any  violent  resistance  to  the 
execution  of  a  sentence,  which  they  may  not  deem  satis- 
factory, nor  can  they  prosecute  any  right  in  opposition 
to  the  law.  FOREIGNERS  may  use  violent  means  to  enforce 
a  right:  tho'  they  are  not  justified  in  using  such  means, 
while  there  is  any  possibility  of  obtaining  redress  in  a 
legal,  and  peaceable  manner. 

It  is  on  such  grounds  that  reprisals  are  made  upon  the 
persons  and  property  of  the  subjects,  belonging  to  a 
power,  who  refuses  to  grant  redress  and  reparation  for 
injuries  and  aggressions.  It  is  a  practice  not  literally 
enacted  by  the  law  of  nature,  but  generally  received 
through  custom.  It  is  a  practice  too  of  the  greatest 
antiquity:  for  in  the  eleventh  book  of  the  Iliad,  we  find 
Nestor  giving  an  account  of  the  reprisals,  which  he  had 
made  upon  the  Epeian  nation,  from  whom  he  took  a  great 
number  of  cattle,  as  a  satisfaction  for  a  prize  which  his 
father  Neleus  had  won  at  the  Elian  games ;  and  for  debts 
due  to  many  private  subjects  of  the  Pylian  kingdom. 
Out  of  this  booty  the  king  having  selected  his  own  due, 
equitably  divided  the  rest  among  the  other  creditors. 

VI.  It  has  been  a  received  opinion  with  many  nations, 
that  reprisals  might  be  made  even  upon  the  LIVES  of  in- 
nocent   subjects,    owing   to   the  right,  which  it  was  sup- 
posed  that  every   one  had  over  his  own  life,  and  which 
might  be   transferred   from   the   individual   to  the  state. 
A  doctrine,  which,  as  it  was  proved  in  the  first  book  of 
this    treatise,    can    never   be   reconciled   either   to  sound 
religion  or  morality.     Indeed  a  person  may  ACCIDENTALLY, 
though  not  INTENTIONALLY  be  killed  by  us  in  attempting 
to    prevent    him    from    violently    obstructing   us   in   the 
prosecution  of  a  lawful  right.     Yet  if  such  an  accidental 
calamity  could  be  foreseen,  the  law  of  charity,  setting  so 
pre-eminent  a  value  upon  the  life  of  man,  would  in  such 
a  case  prescribe  the  forbearance  of  our  right. 

VII.  But   on   this,    as   well   as  other  points,    we   must 
take    care    not   to  confound  the  natural  and  fundamental 
law  of   nations,    with   the    civil   and  conventional  law  of 
particular  states. 

By  the  law  of  nations  all  the  permanent  subjects,  both 
natives  and  settlers,  of  an  offending  state  or  sovereign  are 
liable  to  suffer  reprisals :  but  the  same  rule  does  not  bind 


THE   RIGHTS   OF   WAR   AND   PEACE  313 

those,  who  are  passing  through  a  country,  or  only  resid- 
ing in  it  for  a  time.  For  such  reprisals  are  a  kind  of 
pledges,  like  public  burdens,  made  answerable  for  the 
public  debts,  from  which  foreigners,  being  temporary 
residents,  though  owing  obedience  to  the  laws,  are  to- 
tally exempt. 

In  the  same  manner,  Ambassadors,  but  not  those  sent 
from  an  enemy  to  our  enemies,  and  their  property,  are 
exempt  from  such  conditions  by  the  law  of  nations.  By 
the  CIVIL  LAW  too  of  many  countries  an  exception  is 
made  in  favour  of  women  and  children,  of  men  of  letters, 
and  those  who  are  travelling  for  the  purposes  of  trade. 
But  by  the  law  of  NATIONS  the  goods  of  all  are  liable  to 
reprisals,  as  was  the  case  at  Athens,  respecting  the  seiz- 
ure of  persons.  In  many  places,  by  the  civil  law,  the 
right  of  making  reprisals  is  obtained  of  the  sovereign, 
and  in  others,  of  the  judges. 

By  the  law  of  nations  the  property  of  all  captures  is 
devoted  to  discharge  the  debt,  and  defray  the  expenses 
incurred,  the  remainder  of  which,  after  due  satisfaction 
obtained,  and  peace  concluded,  should  be  restored.  By 
the  civil  law  the  persons  interested  are  summoned  to  ap- 
pear, the  property  is  sold  by  public  authority,  and  the 
money,  accruing  from  thence,  divided  among  all  who  are 
entitled  to  a  share  of  the  same.  But  these  and  other 
points  of  the  same  kind  are  to  be  learned  from  civilians, 
who  are  conversant  in  such  matters,  and  particularly 
from  Bartolus,  who  has  written  upon  reprisals.  This 
subject  may  be  closed  with  one  observation,  that  will  in 
some  measure  tend  to  soften  the  rigour  of  this  stern, 
but  necessary  right,  and  that  observation  is,  that  such 
as  by  not  discharging  a  debt,  or  granting  redress,  have 
occasioned  reprisals  to  be  made,  are  bound,  in  justice 
and  honour,  to  make  good  the  losses  of  those,  who  have 
thereby  suffered. 


CHAPTER   in. 

ON   JUST   OR   SOLEMN   WAR   ACCORDING   TO    THE   LAW   OF 
NATIONS  ON  DECLARATIONS  OF  WAR. 

Solemn  war,  according  to  the  Law  of  Nations  between  different  states 
— A  people,  though  engaged  in  unjust  war,  to  be  distinguished 
from  pirates  and  robbers  —  Change  in  the  condition  of  belligerents 

—  Formal  war  can  be  made   by  the  Sovereign  power  alone  —  Dec- 
laration of  war  —  The  Law  of  Nature,  Law  of  Nations,  respecting 
the  same  —  Declaration,  conditional,   absolute  —  Forms  of  declara- 
tion introduced  by  the  civil  law  —  War  declared  against  a  Sover- 
eign includes  his  subjects,  and  allies  —  The  reason  why  allies  are 
included  —  Declarations,  why  necessary  to  establish  certain  effects 

—  Whether  actual  warfare  immediately  follows  a  declaration,  con- 
sidered—  Whether  the  violation  of  an  Ambassador's  rights  to  be  a 
just  ground  of  war. 

I.  IN  THE  first  book  of  this  treatise  it  was  observed, 
that  according  to  the  best  writers,  a  war  is  defined  to 
be  just,  not  on  account  of  the  CAUSES  solely,  in  which  it 
originates,  nor  on  account  of  the  MAGNITUDE  of  its  objects, 
but  from  certain,  peculiar,  effects  of  right,  with  which 
it  is  attended. 

But  to  what  kind  of  war  such  an  appellation  most  duly 
belongs  will  be  best  understood  by  considering  the  defi- 
nition, which  the  Roman  Lawyers  have  given  of  a  PUBLIC 
or  NATIONAL  enemy.  <(  Those,  says  Pomponitis,  are  PUBLIC 
and  LAWFUL  ENEMIES,  with  whose  STATE  our  own  is  engaged 
in  war:  but  enemies  of  every  other  description,  come 
under  the  denomination  of  pirates  and  robbers.  With 
that  opinion  Ulpian  entirely  accords,  making  an  addi- 
tional observation,  that  (<  if  any  one  be  taken  by  robbers, 
as  he  is  not  a  lawful  prisoner  of  war,  he  cannot  claim 
of  his  own  state  the  right  of  postliminium.  But  if  he 
be  taken  prisoner  by  a  public  enemy  of  the  state,  being 
considered  as  a  prisoner  of  war,  he  is  entitled  by  the 
right  of  postliminium  to  be  restored  to  his  former  con- 
dition. B 

These  opinions  are  supported  by  that  of  Paulus,  who 
maintains,  that  persons  captured  by  pirates  still  continue 
free,  that  is,  are  not  to  be  considered  as  prisoners,  for 
whom  an  exchange  may  be  demanded.  So  that  by  the 
opinion  of  the  Roman  Lawyers  it  is  evident,  that  no  war 
314) 


THE  RIGHTS  OF  WAR  AND  PEACE  315 

is  considered  to  be  lawful,  regular,  and  formal,  except 
that  which  is  begun  and  carried  on  by  the  sovereign 
power  of  each  country.  Cicero,  in  his  fourth  Philippic, 
describes  {<a  public  and  authorised  enemy  to  be  the 
person,  who  possesses  the  civil  and  military  powers  of 
the  state,  who  can  command  the  treasury,  and  the 
services  of  the  people  in  support  of  his  measures,  and 
who,  as  occasions  offer,  has  power  to  conclude  treaties 
of  peace  and  amity. w 

II.  A  state,  though  it  may  commit  some  act  of  aggres- 
sion, or  injustice,  does  not  thereby  lose  its  political 
capacity,  nor  can  a  band  of  pirates  or  robbers  ever  be- 
come a  state,  although  they  may  preserve  among  them- 
selves that  degree  of  subordination,  which  is  absolutely 
necessary  to  the  subsistence  of  all  society.  For  with  the 
latter,  the  commission  of  crime  is  the  SOLE  bond  of  union, 
whereas  the  former,  though  not  always  free  from  blame, 
but  occasionally  deviating  from  the  laws  of  nature,  which 
in  many  cases  have  been  in  a  great  measure  obliterated, 
still  regulate  their  conduct  by  the  treaties,  which  they 
have  made,  and  certain  customs  that  have  been  estab- 
lished, being  united  among  themselves  for  the  mutual 
support  of  lawful  rights,  and  connected  with  foreign 
states  by  known  rules  of  standing  polity. 

The  Scholiast,  upon  Thucydides,  remarks  that  the 
Greeks,  at  the  time  when  piracy  was  reckoned  lawful, 
forebore  committing  massacres,  or  nightly  depredations, 
and  carrying  off  the  oxen  that  were  necessary  for  the 
plough.  We  are  informed  by  Strabo,  that  other  nations 
too,  who  lived  by  plunder,  after  they  had  returned  home 
from  their  predatory  voyages,  sent  messages  to  the 
owners,  whom  they  had  plundered,  to  know  if  they  would 
redeem  the  captures  at  a  fair  price. 

In  morals,  the  whole  system  often  derives  its  name 
from  some  one  of  the  principal  parts,  as  Cicero  remarks, 
in  the  fifth  book  of  his  BOUNDS  of  GOOD  and  EVIL,  and 
Galen  observes  that  a  mixture  is  often  called  by  the 
name  of  its  chief  ingredient.  So  that  Cicero  is  not  alto- 
gether correct  in  saying,  that  a  state  is  not  merely 
diseased,  but  entirely  destroyed,  by  the  injustice  of  its 
component  and  leading  members.  For  a  morbid  body  is 
still  a  body,  and  a  state,  though  dreadfully  diseased,  is 
still  a  political  being,  as  long  as  its  laws  and  tribunals 
and  other  necessary  parts  of  its  constitution  remain,  to 
administer  justice  and  give  redress  to  foreigners,  no  less 


316  HUGO   GROTIUS 

than  to  private  subjects  in  their  actions  against  each 
other. 

There  is  a  beautiful  observation  in  Dion  Chrysostom, 
who  compares  the  law  of  a  state,  particularly  that  branch 
of  it  relating  to  the  law  of  nations,  to  the  body  ani- 
mated by  the  soul,  upon  the  departure  of  which  the  cor- 
poreal frame  becomes  a  mass  of  lifeless  clay:  in  the 
same  manner  political  society  cannot  subsist  without  the 
guiding  and  controuling  principle  of  law.  Aristides,  en- 
couraging the  Rhodians  to  harmony,  observes,  that  even 
under  a  tyrannical  government  many  good  laws  may  be 
found. 

These  are  points,  which  may  be  cleared  up  by  ex- 
amples. Thus  Ulpian  maintains  that  those  who  are  cap- 
tured by  pirates  cannot  be  considered  as  prisoners  of 
war:  but  if  captured  by  the  Germans,  for  instance,  or 
any  national  enemy,  they  lose  their  liberty  for  a  time. 
But  the  Germans,  as  we  are  informed  by  Caesar,  thought 
acts  of  plunder,  if  committed  in  a  foreign  territory,  no 
disgrace.  Tacitus  says  that  the  Cattians,  a  noble  race 
of  people  in  Germany,  and  the  Garamantians  were  ad- 
dicted to  the  same  habits  of  plunder,  yet  still  retained 
their  rank  among  states.  —  Such  is  the  difference  between 
a  national  and  political  body,  and  a  band  of  men  uniting 
together  SOLELY  FOR  THE  COMMISSION  OF  CRIMES. 

III.  A  change  may  occur  not  only  in  the  situations  of 
individuals,  as  in  those  of  Jephthah,    Arsaces,    and  Viri- 
atus,  who,  from  being  leaders  of  voluntary  bands,  became 
lawful   commanders;    but  the    same    has    also    happened 
with  respect  to  whole  communities,  which   being   origin- 
ally composed  of    nothing  but   freebooters    have,  by  the 
gradual  course   and   changes  of   time,  risen  to  the   rank 
and  dignity  of  states. 

IV.  What  has  been  said  with  respect  to  the  right  of  mak- 
ing formal  and  lawful  war,   being  vested  in  the  sovereign 
power  alone,  includes  those  who  have   any    share  in   the 
sovereign   power,    as    the   different  communities  forming 
the  States  General  of  many   commonwealths.     The  same 
rule  will  hold  good  of  those,  who  are  not  SUBJECTS   of  a 
superior  state,  but  joined  to  it  in  confederacy  by  an  un- 
equal treaty:  innumerable  instances  of   which   are   to  be 
found  in  history.     This   was   the   case   between    the   Ro- 
mans and  their  allies,  the  Volscians,  the  Latins,  and  the 
Spaniards:  and  all  whom  we  read   of   being   engaged  in 
wars,  which  were  considered  as  lawful  and  just. 


THE   RIGHTS  OF   WAR  AND   PEACE  317 

V.  But  to  make  a  war  just,  according  to  this  meaning, 
it  must  not  only  be  carried  on   by  the  sovereign  author- 
ity on  both  sides,  but  it  must  also  be  duly  and  formally 
declared,  and  declared  in  such  a  manner,  as  to  be  known 
to  each  of   the   belligerent   powers.     Cicero,  in   the   first 
book  of  his   offices,    points   out  "the  equity  of  the  rules 
prescribed  by  the  Roman  Law  for  the  declaration  of  war, 
from  whence  it  may  be  concluded  that  no  war  is  regular 
or  just,  but  such  as  is  undertaken  to  compel  restitution, 
and  to  procure    indemnity   for  injuries,  and   that  too  ac- 
companied with  a  formal   declaration."     Livy  also   in  the 
same   manner    deems  an   observance    of  these  rules  req- 
uisite  to   form   the   characteristic   of   a   just   war.      And 
describing  an  incursion   of   the   Acarnanians  into  Attica, 
and  their  ravaging  the  country,  he  says  that  "those   acts 
of  irritation  ended  in  a  declaration  of  JUST  and  REGULAR 
war  on  both  sides." 

VI.  In  order  to  understand  all  these  points  clearly  re- 
specting the  declaration   of  war,  an   accurate    distinction 
must  be  made  between  the  principles,  which  are  founded 
on  the  law  of  nature  itself,  and  those,  which,  though  not 
derived  immediately  from  that  source,    are  still  found  to 
be  just :  it  will  be  necessary  also  to  examine,  what  is  re- 
quired by  the  law  of  nations  towards  obtaining,   IN  WAR, 
all  the   consequences,  privileges  and    effects  of   that  law, 
and,  at  the  same   time,  to    investigate   the   consequences 
and  rights  arising  from  the  peculiar  laws  and  customs  of 
particular  nations. 

To  repel  force,  or  to  punish  a  delinquent,  the  law  of 
nature  requires  no  declaration.  And,  as  Thucydides  re- 
lates, Sthenelaidas,  one  of  the  Ephori,  maintains  that 
"  where  we  have  been  injured,  not  by  WORDS,  but  by  AC- 
TIONS, the  matter  cannot  be  decided  by  WORDS  and  FORMS.  B 
And  Aelian,  after  Plato,  observes  that  it  is  not  the  dec- 
laration of  the  Herald,  but  the  voice  and  law  of  nature, 
which  proclaim  war,  undertaken  to  repel  force.  Hence 
Dion  Chrysostom,  in  addressing  the  Nicomedians, 
says  that  many  wars  are  begun  without  any  declara- 
tion. 

Upon  the  same  ground  Livy  condemns  the  conduct  of 
Menippus,  a  general  belonging  to  Antiochus  for  having 
killed  some  Roman  citizens  before  any  declaration  of 
war  had  been  made,  or  even  before  a  sword  had  been 
drawn,  or  a  drop  of  blood  spilt,  to  shew  that  hostilities 
were  intended.  By  this  objection  he  proves  that  either  a 


318  HUGO   GROTIUS 

formal  declaration,  or  some  act  indicative  of  hostilities 
was  deemed  requisite  to  justify  actual  warfare. 

Neither,  if  we  follow  the  law  of  nature,  is  there  any 
more  occasion  for  notice  or  declaration,  where  an  owner 
intends  to  lay  hands  upon  HIS  OWN  PROPERTY.  But  when- 
ever one  thing  is  taken  in  return  for  another,  or  the 
property  of  a  debtor  is  seized  for  the  recovery  of  a  debt, 
and,  especially,  if  any  one  intends  seizing  the  property 
of  those,  who  are  subjects  to  the  debtor,  a  formal  de- 
mand must  be  made,  as  a  proof  that  recourse  to  such 
security  is  the  only  means  left  of  obtaining  redress  and 
satisfaction.  Such  a  demand  is  necessary  because  that 
is  not  a  PRIMARY  and  ORIGINAL  right,  but  a  SECONDARY 
right,  SUBSTITUTED  in  the  place  of  the  primary  and 
original,  by  the  artificial  rules  of  civil  law. 

In  the  same  manner  to  justify  an  attack  upon  a  sov- 
ereign power  for  the  aggressions  and  debts  of  its  sub- 
jects, a  previous  remonstrance,  and  a  proper  demand  of 
justice  must  be  made  to  that  power.  For  it  is  only  by 
refusing  to  punish  the  guilty,  or  to  grant  indemnity  to 
the  injured,  that  states  or  sovereigns  can  be  implicated 
in  the  misconduct  of  their  subjects.*  But  even  where 
the  law  of  nature  does  not  directly  prescribe  that  such 
a  remonstrance  or  demand  should  be  made,  yet  the  com- 
mon principles  of  humanity  and  equity  will  recommend 
thef  use  of  any  means,  that  may  prevent  recourse  to 
the  calamities  of  war.  The  commandment  given  by  God 
to  the  Hebrews,  to  send  a  message  of  peace  to  any  state 
or  city,  before  they  began  an  intended  attack,  was  de- 
signed as  a  special  command  to  that  people,  yet  some 
have  confounded  it  with  the  general  law  of  nations.  For 
it  was  not  ANY  kind  of  peace  that  was  meant  by  that  in- 
junction, but  only  such  a  peace  as  imposed  terms  of 
SUBJECTION  and  TRIBUTE.  We  are  informed  by  Xenophon, 
that  when  Cyrus  went  into  the  country  of  the  Armeni- 
ans, he  sent  messengers  to  the  king,  to  demand  the  tribute 
and  number  of  troops,  which  had  been  stipulated  by  treaty. 

But  to  obtain  the  peculiar  rights  and  consequences  re- 
sulting from  the  law  of  nations,  a  declaration  of  war  by 
one  of  the  parties,  at  least,  if  not  by  both,  is  absolutely 
requisite  in  all  cases. 

VII.  Those  declarations  are  either  conditional  or  abso- 
lute. A  conditional  declaration  is  that  which  is  coupled 

»  See  b.  ii.  ch.  zxi.  sect.  2.  of  this  treatise 
f  See  b.  ii.  ch.  xxiii.  sect  7.  ibid. 


THE   RIGHTS   OF  WAR  AND   PEACE  319 

with  a  demand  of  restitution  or  redress.  Under  the  name 
of  restitution,  the  FECIAL  LAW  of  Rome,  that  is  the  LAW 
RESPECTING  DECLARATIONS  OF  WAR,  comprehended  not  only 
the  claims,  which  OWNERSHIP  established,  but  the  prosecu- 
tion of  EVERY  right  arising  from  criminal  or  civil  causes. 

Hence  the  declarations  were  couched  in  terms,  requir- 
ing restoration,  satisfaction,  or  surrender.  Here,  by  the 
term,  surrender,  the  party  appealed  to  is  understood  to 
have  the  option  either  of  punishing  the  offender,  him- 
self, or  delivering  him  up  to  the  aggrieved  person.  This 
manner  of  demanding  restitution  is,  according  to  the 
testimony  of  Pliny,  called  CLARIGATION,  that  is,  a  LOUD 
and  FORMAL  DEMAND.  Livy  gives  us  an  example  of  a  con- 
ditional and  qualified  declaration,  wherein  the  aggrieved 
power  denounces  <(a  determined  resolution  to  prosecute 
her  rights  with  the  utmost  violence,  if  the  agressor  will 
not  make  reparation  and  atonement  for  the  injury  he  has 
done."  Tacitus  also  relates  the  substance  of  a  dispatch 
sent  to  Caecina  by  Germanicus,  wherein  he  declares,  that 
*  if  the  ringleaders  of  the  mutinous  and  rebellious  legions 
are  not  immediately  punished,  he  will  advance  with  his 
army,  and  put  the  whole  to  the  sword." 

An  ABSOLUTE  declaration  of  war  is  issued,  where  any 
power  has  already  begun  hostilities,  or  committed  acts 
which  call  for  exemplary  punishment.  Sometimes  indeed 
a  conditional,  is  followed  by  an  absolute  war,  though  in 
such  a  case  the  latter  is  not  actually  necessary,  but  only 
a  confirmation  of  the  former.  This  gave  rise  to  the  form, 
which  says,  "an  appeal  is  hereby  made  against  such  a 
people,  as  unjust  and  refusing  to  grant  redress."  There 
is  another  form  also  purporting,  that  <(the  principal 
herald  of  the  Roman  citizens  has  made  known  to  the 
principal  herald  of  the  ancient  Latins,  and  to  the  Latin 
people,  that  redress  is  demanded  of  them  by  just  and 
lawful  war,  on  account  of  all  the  disputes  which  they 
have  refused  to  settle,  and  the  indemnities  which  they 
have  been  bound  to  grant,  and  have  refused;  and  that 
this  is  the  only  means  remaining  to  recover  all  that  has 
been  unjustly  detained."  There  is  also  a  third  mode  of 
declaration,  which  runs  in  the  following  tenour;  "Since 
the  ancient  people  of  the  Latins  have  committed  aggres- 
sions against  the  people  of  Rome,  the  people  of  Rome, 
with  the  advice  and  consent  of  the  senate,  declare  war 
against  them,  and  in  the  name  of  the  senate  and  people 
of  Rome  their  purpose  is  thus  published." 


320  HUGO   GROTIUS 

But  that  in  case  of  RENEWED  wars  such  a  declaration  is 
not  absolutely  necessary,  appears  from  the  circumstance 
of  its  being  made  in  due  form  at  the  nearest  garrison, 
and  not  PERSONALLY  to  the  offender  himself,  according  to 
the  answer  given  by  the  heralds,  when  they  were  con- 
sulted in  the  case  of  Philip  of  Macedon,  and  afterwards 
respecting  Antiochus.  Whereas  a  declaration  for  the  FIRST 
time  should  be  made  to  the  enemy  himself.  Indeed  in 
the  war  against  Pyrrhus  the  declaration  was  made  to 
one  of  his  soldiers,  in  the  Flaminian  Circus,  where,  as 
Servius  observes  in  his  notes  on  the  sixth  book  of  the 
Aeneid,  he  was  commanded  to  purchase  a  piece  of  ground, 
as  a  handle  for  dispute.  A  proof  also  that  IN  SOME  CASES 
a  declaration  is  superfluous  may  be  taken  from  the  cir- 
cumstance that  war  is  frequently  declared  by  BOTH  SIDES, 
which  was  done  by  the  Corcyraeans  and  Corinthians  in 
the  Peloponnesian  war,  though  a  declaration  by  one  of 
the  parties  would  have  been  sufficient. 

VIII.  As  to  the  use  of  the   caduceum,   or   staff  with 
the  figure  of  two   snakes  twisted   around  it,   which   am- 
bassadors  carried,  when   they   sued   for  peace,  it  was   a 
ceremony  peculiar  to  the  GREEKS,  and  not  derived  from 
the  GENERAL  law  of  nations.     The   ROMANS  in  the  same 
manner  had  particular  customs,  such  as  using  vervain  in 
forming  alliances,  throwing  a  bloody  spear,  as  a  declar- 
ation   of     war,    renouncing    all    former    friendship    and 
alliance  at  the  expiration  of  thirty  days,  after  satisfaction 
had    been   demanded    and  refused,    and    again    throwing 
another  spear.     None  of   these   PECULIAR  customs  ought 
to  be  confounded  with  the  GENERAL  law  of  nations.     For 
Arnobius  informs  us,  that  in  his  time  many  of  them  had 
fallen  into  disuse,  and  even  in  the  time  of  Varro   some 
of  them  were  omitted.     The  third  Punic  war  indeed  was 
not  declared  till  the  moment  of  its  actual  commencement 

IX.  A  declaration   of   war,  made   against   a  sovereign, 
includes  not  only  his  own  subjects,  but  all  who  are  likely 
to  become  his   associates,  as   thereby  they  make    them- 
selves   accessories   in   the    war.      And   this    is    what  the 
modern   lawyers   mean,  when   they  say  that,    in   bidding 
defiance  to  a  Prince,  we  bid  defiance  to  all  his  associates. 
For  they  give  the  name   of  defiance   to  a  declaration  of 
war.     By  which   is  understood  the   war  carried  on  with 
the  power  against  whom  it  has  been  declared.     Thus  upon 
war    being     declared   against    Antiochus,    there    was    no 
occasion  for  a  separate  declaration  against  the  Aetolians, 


THE   RIGHTS  OF   WAR  AND   PEACE  321 

who  had  openly  joined  Antiochus.  For,  as  the  heralds  in 
their  answer  justly  observed,  the  Aetolians  had,  by  that 
act  voluntarily  brought  war  upon  themselves. 

X.  But  if  after  the  conclusion  of  such  a  war  it  should 
be  deemed  expedient  to  attack  any  other  nation  or  king  for 
having  furnished  supplies  and  assistance  towards  that 
war,  a  new  declaration  of  war  will  be  necessary.  For 
that  nation  or  king  is  then  to  be  considered,  not  as 
an  accessory,  but  as  a  principal  enemy.  And  therefore 
it  was  with  reason  said,  that  the  war  of  Manlius  against 
the  Galatians,  and  that  of  Caesar  against  Ariovistus,  were 
not  just  wars  according  to  the  law  of  nations.  For  war 
was  made  upon  them  not  as  accessories,  but  as  princi- 
pals. So  that  for  this  purpose,  as  the  law  of  nations 
would  have  required  a  declaration,  in  the  same  manner 
the  Roman  law  would  have  required  a  new  order  of  the 
Senate. 

For  on  the  motion  being  made  for  the  war  with  An- 
tiochus, the  question  was  also  put,  whether  it  should  not 
at  the  same  time  be  made  with  his  adherents.  The  same 
rule  also  being  observed  against  King  Perseus,  it  must 
be  understood,  as  including  the  adherents  during  all  the 
time  that  war  with  those  princes  continued;  and  impli- 
cating all,  who  in  reality  gave  them  support. 

XL  The  reason  why  a  declaration  is  necessary  to  con- 
stitute what  is  deemed,  according  to  the  law  of  nations, 
a  just  war,  is  not  that  which  some  writers  assign.  For 
they  allege  that  it  is  to  prevent  every  appearance  of 
clandestine  and  treacherous  dealing:  an  openness,  which 
may  be  dignified  with  the  name  of  magnanimity,  rathei 
than  entitled  a  matter  of  right.  On  this  point,  we  are 
informed  that  some  nations  have  gone  so  far,  as  to  settle 
and  make  known  the  very  time  and  place  of  a  general 
engagement. 

But  waving  all  conjecture,  a  more  satisfactory  reason 
may  be  found  in  the  necessity  that  it  should  be  known 
for  CERTAIN,  that  a  war  is  not  the  PRIVATE  undertaking 
of  bold  ADVENTURERS,  but  made  and  sanctioned  by  the 
PUBLIC  and  SOVEREIGN  authority  on  both  sides;  so  that  it 
is  attended  with  the  effects  of  binding  all  the  subjects  of 
the  respective  states; — and  it  is  accompanied  also  with 
other  consequences  and  rights,  which  do  not  belong  to 
wars  against  pirates,  and  to  civil  wars. 

XII.  There  is  much  truth  indeed  in  the  observations, 
which  some  have  made,  and  which  they  have  produced 

21 


322  HUGO   GROTIUS 

examples  to  confirm,  that  even  in  wars  of  this  kind  all 
captures  become  the  lawful  prize  of  the  captors. 

Yet  this  is  only  partially  true,  and  that  too,  according 
to  the  law  of  nature,  and  not  according  to  the  voluntary 
law  of  nations.  For  the  latter  only  makes  provision  to 
secure  the  rights  of  nations,  as  WHOLE  communities,  and  not 
of  those,  who,  as  in  civil  wars,  form  but  ONE  PART  of  a 
nation. 

The  same  writers  are  mistaken  too  in  the  supposition 
that  defensive  wars  require  no  declaration.  For  it  is  no  less 
necessary  to  shew  by  way  of  vindication  that  it  is  a  de- 
fensive war,  and  at  the  same  time  by  public  declaration 
to  give  it  the  character  of  a  national  and  lawful  war,  in 
order  to  establish  those  rights  and  consequences,  that 
have  been  already  mentioned,  and  which  will  hereafter  be 
more  fully  explained. 

XIII.  They  maintain  another  position  also,  which  is  by 
no   means    true,    and   that    is,    that   a  power    ought   not 
IMMEDIATELY  to  follow  up  a  declaration  of  war  with  actual 
hostilities,    as    Cyrus    did    to    the    Armenians,    and    the 
Romans  to  the    Carthaginians.     For   the   law   of   nations 
requires  the  intervention  of  no  DEFINITE  time  between  the 
declaration  and  the  commencement  of  war. 

There  may  indeed  be  some  cases,  where  natural  justice 
will  render  such  a  delay  proper.  Thus,  for  instance, 
where  reparation  for  injury,  or  the  punishment  of  aggres- 
sors is  demanded,  it  is  but  reasonable  to  wait  till  it  can  be 
known,  whether  the  just  demand  will  be  complied  with 
or  rejected. 

XIV.  In  order   to  establish   the   same    consequences,  a 
declaration  will  be  equally  necessary  too,  where  the  rights 
of  Ambassadors  have  been  violated.     Yet  it  will   be  suf- 
ficient for  it  to  be  made  in  the  manner,  in  which  it  may 
be   done    with   the   greatest   safety.      As  in   many  other 
matters,  in    places  which  afford  no  security,    satisfaction 
is  demanded  by  denunciation  or  summons. 


CHAPTER  IV. 

ON  THE   RIGHT  OF  KILLING  AN    ENEMY  IN   LAWFUL  WAR, 
AND  COMMITTING  OTHER  ACTS  OF  HOSTILITY. 

General  explanation  of  the  effects  of  formal  war  —  Distinction  between 
lawful  and  innocent  impunity  —  Merit  of  the  latter  —  Examples 
added  to  explain  it  —  General  effects  of  former  war  considered 
with  respect  to  lawful  impunity  —  The  reason  of  their  introduction 

—  Historical  testimonies  —  By  this  right  all  persons,  found  within 
an  enemy's  territory,  objects  of  hostility  —  Also  all  going  thither 
before  the  war  —  The  subjects  of  an  enemy  liable  to  be  seized  every- 
where, except  protected  by  the  laws  of  a  neutral  teritory  —  Case  of 
women  and  children — Case  of  prisoners — Of  those  whose  voluntary 
offer  of  surrender  is  rejected  —  Unconditional  surrender —  Retaliation 

—  Obstinate  defence  —  Hostages. 

I.  SERVIUS  in  his  comment  on  the  passage  of  Virgil, 
where  that  poet  says  that  war  "will  authorise  mutual 
acts  of  destruction  and  rapine,*  in  tracing  the  fecial  or 
herald's  law  to  Ancus  Martius,  and  even  beyond  him  to 
a  still  more  remote  period,  remarks  that,  (<if  ever  the 
persons  or  property  of  subjects,  belonging  to  the  Roman 
state,  were  seized  and  carried  off  by  any  other  nation, 
the  principal  Herald,  or  King  at  arms  went  out  with 
the  sacred  ministers,  who  presided  at  the  making  of 
solemn  treaties,  and  proceeding  to  the  verge  of  the  ter- 
ritories of  the  offending  nation,  declared  with  a  loud  voice 
the  cause  of  the  war,  and  the  refusal  of  that  nation 
either  to  restore  what  had  been  seized,  or  to  deliver  up 
the  aggressors  to  justice.  After  this  he  threw  a  spear 
to  indicate  that  war  and  all  its  consequences  were  from 
that  moment  begun." 

The  commentator  had  previously  observed  that  the 
ancients  gave  the  name  of  rapine  to  every  act  of  hostility 
even  where  there  was  no  act  of  plunder  committed; 
and  they  likewise  called  every  kind  of  restitution  a 
satisfaction. 

By  this  explanation  we  learn  that  whenever  war  is  pro- 
claimed between  two  states  or  sovereigns,  it  is  accom- 
panied with  certain  rights  or  consequences,  which  do  not 
NECESSARILY  belong  to  war  itself.  And  this  is  perfectly 

(323) 


324  HUGO   GROTIUS 

conformable  to  the  examples  from  the  Roman  Lawyers, 
which  have  been  before  produced. 

II.  But  it  will  be  proper  to  consider  how  far  the  law- 
fulness, which  Virgil  speaks  of,  extends.  For  the  term 
lawful  sometimes  implies  whatever  is  just  and  pious  in 
all  respects,  although  the  pursuit  of  a  different  course 
may  perhaps  be  more  laudable:  according  to  the  expres- 
sion of  St.  Paul,  who  says,  (<  all  things  are  lawful  to  me, 
but  all  things  are  not  expedient. w  Ulpian  is  speaking  of 
a  seller,  who,  at  the  expiration  of  a  certain  period,  is  not 
answerable  for  the  safety  of  goods,  which  a  buyer  has 
neglected  to  take  away,  says  he,  will  yet  think  himself 
bound  in  EQUITY  to  preserve  them  with  all  imaginable 
care.  On  some  occasions  when  it  is  said,  that  men  may 
LAWFULLY  do  a  thing,  the  expression  only  means  that 
doing  such  act  will  not  subject  them  to  human  and  legal 
penalties,  but  it  by  no  means  indicates  that  the  action  is 
strictly  conformable  to  the  rule  of  religion  and  morality. 
Thus  among  the  Lacedaemonians  and  Egyptians  stealing 
was  allowed :  an  indulgence  that  by  no  means  took  away 
the  GUILT  of  theft. 

Cicero  in  the  fifth  of  his  Tusculan  questions,  speaking 
of  Cinna,  beautifully  and  justly  points  out  this  abuse  of 
the  word,  LAWFUL.  (<  He  seems  to  me,  says  hey  a  wretched 
man  indeed  for  having  done  those  acts,  and  for  having 
been  in  a  situation,  where  they  might  be  thought  lawful. 
It  can  never  be  lawful  for  any  man  to  do  wrong :  but  we 
fall  into  a  great  mistake  in  the  use  of  that  word:  for  we 
consider  a  thing  to  be  lawful,  which  any  one  may  do  with 
Impunity. w  This  is  the  meaning,  in  which  the  term  is 
generally  understood,  as  the  same  orator,  in  addressing 
the  judges  in  behalf  of  Rabirius  Posthumus,  observes,  a  it 
behoves  you  to  consider,  what  is  becoming  your  character, 
and  not  what  the  rigour  of  the  law  allows  you  to  inflict. 
For  if  you  consult  the  full  extent  of  your  authority,  you 
may  make  away  with  any  citizen  you  please. w 

In  the  same  manner  legislators,  as  it  was  proved  in  a 
former  book  of  this  treatise,  are  not  accountable,  in  their 
legislative  capacity,  to  any  human  tribunal,  for  the  laws, 
which  they  make,  yet  they  cannot,  in  a  moral  point  of 
view,  avail  themselves  of  this  transcendent  power  to  enact 
a  thing  that  is  evidently  unjust.  In  this  sense  we  often 
meet  with  a  distinction  made  between  what  is  proper  or 
right,  and  what  is  lawful.  Thus  Cicero,  in  his  speech  for 
Milo,  makes  the  LAW  OF  NATURE  the  standard  of  what  is 


THE   RIGHTS   OF   WAR  AND   PEACE  325 

RIGHT,  and    LEGAL    AUTHORITY,  the    standard   of   what  is 
lawful. 

III.  Thus  qualified,  the  annoyance  of  an  enemy,  either 
in  his  person  or  property,  is  lawful.     This  right   extends 
not  only   to   the   power   engaged  in  a  just  war,  and  who 
in    her    hostilities    confines    herself    within    the    practice 
established  by  the  law  of  nature,  but   each   side  without 
distinction    has    a   right   to  employ   the   same  means   of 
annoyance.     So    that    any   one    taken   in    arms,   even    in 
another's  territory,  cannot   be  treated  as  a  robber,  male- 
factor, or  murderer,  nor  can  even  that  neutral  power,  in 
whose  territory  he  is  taken,  treat  him   as   an  enemy,  for 
being  found  in  arms. 

IV.  This  principle  was  established  by  nations  to  pre- 
vent others  from  interfering  in  their   disputes,  or  giving 
the  law  to  them  respecting  the  rights   of  war.     Besides, 
if  this  were  not  the  case,  neutral  powers  would  frequently 
be  involved  in  the  wars  of  others.     A  reason   which  the 
people  of  Marseilles  urged  in  the  dispute  between  Caesar 
and  Pompey.     They  alleged    that   they  had  neither  suf- 
ficient judgment  to  determine  on  which  side  justice   lay, 
nor,  if  they  could  determine,  had  they  strength  to  give 
effect  to  their  decisions. 

A  spectator  indeed  is  but  ill  qualified  to  judge,  how 
far,  even  in  the  most  just  war,  self-defence,  the  attain- 
ment of  indemnity,  or  the  punishment  of  an  aggressor, 
may  be  carried.  These  are  points,  which,  on  many,  if 
not  most,  occasions  must  be  left  to  the  conscience  and 
discretion  of  the  belligerents  themselves:  a  mode  far 
preferable  to  that  of  appealing  to  the  mediation,  and 
decision  of  disinterested  and  neutral  powers.  Livy  has 
given  an  address  of  the  Achaeans  to  the  senate,  in  which 
they  ask,  <(  how  their  availing  themselves  of  the  rights  of 
war  can  ever  be  fairly  called  in  question,  or  made  a 
subject  of  discussion  ? w 

Besides  the  impunity  attending  certain  actions  done  in 
war,  the  acquisition  of  territory  by  the  right  of  conquest 
is  another  topic  of  consideration,  which  will  hereafter  be 
examined. 

V.  The  lawfulness  of  injuring  or  destroying  the  person 
of  a  public  enemy  is  supported  by  the  testimony  of  many 
of  the  best  writers,  both  poets,   moralists,  and  historians. 
In  one  of  the  tragedies  of  Euripides,  there  is  a  proverb, 
which   says,    that   <(  to  kill  a  public  enemy,  or  an  enemy 
in    war   is   no   murder.  *     Therefore    the    custom    of  the 


326  HUGO   GROTIUS 

ancient  Greeks,  which  rendered  it  unlawful  and  impious 
to  use  the  same  bath,  or  to  partake  of  the  same  festivi- 
ties and  sacred  rites  with  a  person  who  had  killed  another 
in  time  of  peace,  did  not  extend  to  any  one  who  had 
killed  a  public  enemy  in  war.  Killing  an  enemy  is  in- 
deed everywhere  called  a  right  of  war.  <(  The  rights  of 
war,  says  Marcellus  in  Livy,  support  me  in  all  that  I  have 
done  against  the  enemy."  And  the  same  historian  gives 
the  address  of  Alcon  to  the  Saguntines,  where  he  says, 
<(  You  ought  to  bear  these  hardships,  rather  than  suffer 
your  own  bodies  to  be  mangled,  and  your  wives  and 
children  to  be  seized  and  dragged  away  before  your  eyes. " 
Cicero  in  his  speech  in  defence  of  Marcellus  passes  a  high 
encomium  upon  the  clemency  of  Caesar,  who,  <(by  the 
laws  of  war  and  the  rights  of  victory,  might  have  put  to 
death  all,  whom  he  had  spared  and  protected."  And 
Caesar  observes  to  the  Eduans,  that  <(  it  was  an  act  of 
kindness  in  HIM,  to  spare  those  whom  the  laws  of  war 
would  have  authorised  him  to  put  to  death.* 

But  the  rights  of  war,  for  which  these  writers  plead, 
could  not  PERFECTLY  JUSTIFY  the  putting  prisoners  to  death, 
but  could  only  grant  IMPUNITY  to  those  who  availed  them- 
selves of  the  barbarous  custom.  There  is  a  wide  differ- 
ence however  between  actions  like  these,  and  destroying 
an  enemy  by  proper  means  of  hostility.  For,  as  Tacitus 
says,  (<in  the  leisure  hours  of  peace  the  merits  and  de- 
merits of  every  case  may  be  examined  and  weighed,  but, 
in  the  tumult  and  confusion  of  war,  the  innocent  must 
fall  with  the  guilty":  and  the  same  writer,  in  another 
place,  observes,  that  <(  there  are  many  actions,  which  the 
principles  of  humanity  cannot  ENTIRELY  approve,  but 
which  the  policy  of  war  requires."  And  it  is  in  this, 
and  no  other  sense  that  Lucan  has  said,  *  the  complexion 
of  right  may  be  assigned  to  what  is  wrong. 

VI.  This  right  of  making  lawful  what  is  done  in  war 
is  of  great  extent.  For  in  the  first  place  it  comprises, 
in  the  number  of  enemies,  not  only  those  who  actually 
bear  arms,  or  who  are  immediately  subjects  of  the  bel- 
ligerent power,  but  even  all  who  are  within  the  hostile 
territories,  as  appears  from  the  form  given  by  Livy,  who 
says,  that  <(  war  is  declared  against  the  sovereign,  and  all 
within  his  jurisdiction."  For  which  a  very  good  reason 
may  be  assigned;  because  danger  is  to  be  apprehended 
even  from  THEM,  which,  in  a  continued  and  regular  war, 
establishes  the  right  now  under  discussion. 


THE  RIGHTS  OF  WAR  AND  PEACE  327 

Reprisals  do  not  come  exactly  under  the  same  rule. 
For  like  taxes,  they  were  introduced  for  the  discharge 
of  public  debts,  for  no  part  of  which  temporary  residents, 
or  foreigners  are  answerable.  Therefore  Baldus  is  right 
in  his  observation,  that,  after  war  is  actually  begun, 
much  greater  latitude  is  allowed,  than  in  the  bare  right 
of  making  reprisals.  So  that  what  is  said  of  foreigners, 
who  enter  into  an  enemy's  country,  and  reside  there, 
after  war  is  avowedly  declared  and  begun,  is  undoubt- 
edly true. 

VII.  But  persons,  who  had  gone  to  reside  there  before 
the  war  was  begun,  seem   by  the   law  of  nations  to   be 
included    in    the    number    of    enemies,    unless    within    a 
reasonable    time    they   chuse   to  withdraw.     So   that  the 
Corcyraeans,    when    going    to    besiege    Epidamnus,    gave 
leave  to  all  strangers  to  withdraw,  denouncing  that  they 
would  otherwise  be  treated  as  enemies. 

VIII.  But  the  persons  of  natural-born  subjects,  who  owe 
permanent  allegiance  to  a  hostile   power  may,  according 
to  the  law  of   nations,  be    attacked,  or   seized,  wherever 
they  are   found.     For  whenever,  as   it  was   said  before, 
war  is  declared  against  any  power,  it  is  at  the  same  time 
declared  against  all  the  subjects  of  that  power.     And  the 
law  of  nations  authorises  us  to  attack  an  enemy  in  every 
place:     An  opinion  supported  by  most  legal   authorities: 
thus  Marcian  says  "that  deserters  may  be  killed  in   the 
same    manner   as    enemies,    wherever   they   are    found.® 
They   may   be    lawfully    killed    there,    or    in    their    own 
country,  in  the  enemy's  country,  in  a  country  belonging 
to  no  one,  or  on  the  sea.     But  as  to  the  unlawfulness  of 
killing,  or  violently  molesting   them   in   a  neutral   terri- 
tory, this  protection   does  not   result   from   any  personal 
privileges  of  THEIR  OWN,  but  from  the  rights  of  the  SOV- 
EREIGN of  that  country.    For  all  civil  societies  had  an  un- 
doubted right  to  establish  it   as   a   standing  maxim  that 
no  violence  should  be  offered  to  any  person  within  their 
territories,    nor    any    punishment    inflicted    but    by    due 
process  of  law.     For  where  tribunals  retain  their  author- 
ity in    full  vigour,  to    try   the    merits   of   every  offence, 
and,  after  impartial   inquiry,  to   acquit   the  innocent,  or 
condemn  the  guilty,  the  power  of  the  sword  must  be  re- 
strained from  inflicting  promiscuous  death. 

Livy  mentions  the  circumstance  of  seven  Carthaginian 
gallies  riding  at  anchor  in  a  port  belonging  to  Syphax, 
who  was  then  at  peace  with  the  Carthaginians  and 


328  HUGO   GROTIUS 

Romans.  Scipio  arrived  at  that  time,  with  two  gallies, 
which  might  have  been  attacked  and  sunk  by  the  Car- 
thaginians, before  they  could  enter  the  port:  a  brisk 
wind  rising  carried  them  in,  before  the  Carthaginians 
could  weigh  anchor ;  but  out  of  respect  to  the  king's  au- 
thority they  durst  not  attack  the  Romans  in  his  harbour. 

IX.  But  to  return  to   the    subject,  which   is,  to    decide 
how  far  the  power  of  lawfully  destroying  an  enemy,  and 
all  that  belong  to  him,  extends.     An  extent  of  which  we 
may  form  some  conception   from    the  very  circumstance, 
that  even  women  and  children  are    frequently  subject  to 
the  calamities  and  disasters  of   war.     There   is    no   occa- 
sion to  allege  in  this  place,  as  an  example,  the    conduct 
of  the  Hebrews,  who  slew    the   women   and    children    of 
the    Heshbonites,  and  who   were   commanded  to  execute 
vengeance  upon  the    Canaanites,  and   upon  all,  who  were 
involved  in  the  same  guilt.     Those  examples,  where  God 
MANIFESTLY  interposes  his  commands,  are  not  to  be  drawn 
into  a  precedent  for  authorising  actions  of  the  SAME  kind 
on  DIFFERENT  occasions.     For  the  supreme  and   disposing 
power  of  God  can  never  properly  be  compared  with  that, 
which  men  are  allowed  to  exercise  over  each  other.    The 
Psalmist's  expression  of   the    Babylonian    children    being 
dashed  against  the  stones  is    a   much   stronger   proof   of 
the  custom   commonly  prevailing   among   nations,  in  the 
use  of  victory,  to  which  the  language  of   Homer  bears  a 
close    resemblance,    where   the    poet   says,  that    (<in    the 
cruel  rage  of  war,  even  the  bodies  of  infant-children  were 
dashed    against   the    ground."     Thucydides    relates,    that 
when    Mycalessus    was    captured  by  the    Thracians,  they 
put  all,  even  women  and  children  to  the  sword.     Arrian 
relates  the  same  of  the  Macedonians,  when  they  took  the 
city  of   Thebes.     And   Germanicus    Caesar,  according  to 
the  account  of  Tacitus,  laid  waste  whole   cantons  of   the 
Marsians,  a  people  of  Germany,  with    fire  and  sword,  to 
which  the  historian  adds,  <(  without  sparing  either  age  or 
sex. »     The  Jewish  women  and  children  too  were  exposed 
by  Titus,  to  be  torn  to  pieces  by  wild  beasts   at   a  pub- 
lic spectacle.     Yet  neither  of  those  generals  were  thought 
deficient  in    humanity,  so    much   had    custom    reconciled 
the  minds  of  men  to  this  barbarous    usage.     So  that  the 
massacre  of  the  aged,  like  that  of  Priam   by  Pyrrhus,  is 
no  way  surprising. 

X.  The  right  of  putting  prisoners  of  war  to  death,  was 
so  generally  received  a  maxim,  that  the  Roman  Satirist 


THE   RIGHTS   OF  WAR  AND   PEACE  329 

has  founded  an  adage  upon  it,  and  said,  "that  when  you 
can  sell  a  prisoner  for  a  slave,  it  would  be  absurd  to 
kill  him.*  Words  which  imply  the  full  power  of  doing 
so,  if  the  captor  thought  proper.  The  commentators  in- 
deed assign  the  act  of  saving,  as  the  derivation  of  the 
Latin  word,  servus,  a  slave.  Thus  Thucydides  speaks  of 
the  prisoners  taken  at  Epidamnus,  and  killed  by  the 
Corcyraeans,  and  Hannibal  is  reported  to  have  massacred 
five  thousand  prisoners  at  once.  Nor  was  this  power 
limited  by  the  law  of  nations  to  any  particular  time, 
though  it  was  controuled  by  greater  restrictions  in  some 
places,  than  in  others. 

XI.  Besides  many  examples  occur  of  suppliants,  being 
killed.      Both   ancient   poets   and   historians   relate    such 
actions,  as  ordinary  practices,  authorised   by  the  laws  of 
war.      Augustin   commends   the    Goths   for  sparing   sup- 
pliants, who  had  fled  to  churches  for  refuge,  and  adds  by 
way  of  comment,  that  (<  they  deemed  it  unlawful  to  avail 
themselves  of  the  power,  which  had  usually  been  allowed 
by  the  laws  of  war. w 

Nor  did  those  who  offered  to  surrender  always  experi- 
ence the  lenity  and  mercy,  which  they  sought  thereby. 
Tacitus  relates,  that  when  the  city  of  Uspes  was  invested, 
the  besieged  sent  a  deputation  with  offers  of  an  immedi- 
ate surrender,  and  of  no  less  than  ten  thousand  slaves, 
on  condition  that  the  free-born  should  remain  unhurt. 
The  terms  were  rejected  —  A  proof  that  such  a  rejection 
was  thought  conformable  to  the  rights  of  war. 

XII.  But  even  after  an  unconditional  surrender,  we  find 
that   those,  who   had  capitulated  were  sometimes  put  to 
the  sword.      In  this  manner  the  princes  of  Pometia  were 
treated    by    the    Romans,    the    Samnites    by    Sylla,    the 
Numidians  and  Vercingetorix  by  Caesar.     It  was  almost  a 
standing   practice  with   the    Romans   to  crown   their  tri- 
umphs with  the   death   of  an  enemy's   generals,  whether 
made  prisoners  actually  in   the   field,  or  by  capitulation, 
Cicero    notices   this   custom   in    his  fifth   speech   against 
Verres.     Livy  may  be   consulted  on   this   point  in  many 
parts  of    his    history,    particularly  in   the  twenty-eighth 
book:    and  Tacitus   also  in  the  i2th  book  of  his  Annals. 
The    latter  writer,  in   the  first  book  of  his  HISTORY,  re- 
lates   that    Galba    ordered    every    tenth    man    of    those, 
whom  he  had,  upon  their  earnest   supplication,  admitted 
to    surrender,    to   be   beheaded:   and    Caecina,    after   the 
capitulation  of  Aventicum,  punished  Julius   Alpinus,  one 


330  HUGO   GROTIUS 

of  the  leading  men,  with  death,  as  a  chief  promoter  of 
the  war,  leaving  the  rest  to  the  mercy  or  cruelty  of 
Vitellius. 

XIII.  Historians   sometimes   account   for  this   right  of 
putting  enemies  to  death,  especially  prisoners,  or  suppli- 
ants, either  on   the  score  of  retaliation,  or  for  obstinate 
resistance.     These  may  sometimes  be  the  real,  but  cannot 
be  the  JUSTIFIABLE  motives  of  such  proceedings.     For  the 
law  of  retaliation,  strictly  and  properly  so  called,  must  be 
directly  enforced  upon  the  person  of  the  delinquent  him- 
self.    Whereas,    in    war,    what   is    called    retaliation    fre- 
quently redounds   to  the  ruin  of  those,  who  are  no  way 
implicated  in  the   blame.      The  general  consequences  of 
war  are  thus  described  by  Diodorus  Siculus,  (<  they  could 
not  be  ignorant,  says  he,  having  learnt  from   experience, 
that  all  being  involved  in  the  common  fortune  of  war, 
they  are  liable  on  both  sides  in  defeat,  to  suffer  the  same 
calamities,    which   they  themselves   would  have   inflicted 
upon  the  conquered  party." 

But  as  the  Neapolitans  reply  to  Belisarius,  in  Procopius, 
no  one  can  he  thought  deserving  of  punishment  for  a 
resolute  adherence  to  the  side  on  which  he  is  engaged, 
especially  when  actuated  by  natural  and  just  motives  in 
his  choice  of  that  side.  So  far  from  incurring  guilt  by 
such  a  resolution,  it  is  on  the  other  hand  more  criminal 
for  any  one  to  desert  his  post:  and  so  it  was  judged  by 
the  military  laws  of  ancient  Rome.  Livy  says,  it  was  a 
capital  offence,  for  which  no  fear  of  danger  could  be 
pleaded  as  an  excuse.  So  that  in  the  rigid  application  of 
this  right,  OWING  TO  ITS  IMPORTANCE,  every  one  is  left  to 
use  his  own  discretion,  and  there  may  be  times  and 
circumstances,  in  which  the  law  of  nations  will  justify  its 
full  exertion. 

XIV.  The  same  right  was  exercised  upon  hostages  also, 
not  only  upon   those   who   had   bound  themselves,    as  it 
were,  by  convention,  but  even  upon  those,  who  had  been 
delivered  up  by  others.     Two  hundred  and  fifty  hostages 
were  once  massacred  by  the  Thessalians,  and  the  Volsci 
Aurunci  to  the  amount  of  three  hundred  by  the  Romans. 
It  is  to  be  observed  that  children  were  sometimes  given, 
as  hostages,  which  we  find   was  done  by  the    Parthians, 
and  by  Simon,  who  was  one  of  the  Maccabees.     And  in 
the   times  of   Porsena  it  was  usual  to  deliver  women,  as 
hostages:   a  practice,  which,  as   Tacitus  informs  us,  was 
followed  by  the  Germans. 


THE   RIGHTS  OF  WAR  AND   PEACE  331 

XV.  As  the  law  of  nations  permits  many  things,  in  the 
manner  above  explained,  which  are  not  permitted  by  the 
law  of  nature,  so  it  prohibits  some  things  which  the  law 
of  nature  allows.  Thus  spies,  if  discovered  and  taken, 
are  usually  treated  with  the  utmost  severity.  Yet  there 
is  no  doubt,  but  the  law  of  nations  allows  any  one  to 
send  spies,  as  Moses  did  to  the  land  of  promise,  of  whom 
Joshua  was  one. 

Persons  of  that  description  may  sometimes  be  LAWFULLY 
employed  by  those,  who  are  engaged  in  an  EVIDENTLY 
just  war.  Others  too,  who  have  not  such  evident  proofs 
of  the  justice  of  their  cause,  may  plead  the  rights  of  war 
as  a  vindication  for  employing  such  persons. 

But  if  any  are  to  be  found,  who  disdain  to  avail  them- 
selves of  such  a  privilege,  or  opportunity,  no  argument 
either  FOR,  or  AGAINST  the  LAWFULNESS  of  employing  spies 
can  be  drawn  from  their  conduct,  which  proceeds  rather 
from  a  nobleness  of  mind,  and  a  confidence  in  open 
strength,  than  from  any  decided  opinion  upon  the  subject. 


CHAPTER  V. 

ON  THE  RIGHT  TO  LAY  WASTE  AN  ENEMY'S  COUNTRY,  AND 
CARRY  OFF  His  EFFECTS. 

An  enemy's  property  may  be  wasted  and  plundered  —  Things  deemed 
sacred,  how  far  exempted  —  Stratagem,  how  far  permitted. 

I.  CICERO,   in   the    third   book  of   his  offices,   has   said 
that  there  is  nothing   repugnant  to  the   LAW  OF  NATURE 
in  spoiling  the  effects  of  an   enemy,  whom  by  the  same 
law  we   are   authorized  to  kill.     Wherefore  it  is  not  sur- 
prising  that   the   same   things  should  be  allowed  by  the 
LAW  OF  NATIONS.     Polybius,  for  this  reason,  in  the   fifth 
book   of    his    history,    maintains,    that    the    laws   of    war 
authorise   the  destruction  of  an  enemy's  forts,  harbours, 
and   fleets,  the   seizure   of  his  men,  or  carrying  off  the 
produce  of  his  country,  and  every  thing  of  that  descrip- 
tion.    And    we    find    from    Livy   that    there    are   certain 
rights  of  war,  by  which  an  enemy  must  expect  to  suffer 
the  calamities,  which  he  is  allowed  to  inflict,  such  as  the 
burning  of  corn,  the  destruction  of  houses,  and  the  plunder 
of  men  and  cattle.     Almost  every  page  of  history  abounds 
in  examples  of  entire  cities  being  destroyed,  walls  levelled 
to  the  ground,  and  even  whole  countries  wasted  by  fire 
and  sword.     Even  in  cases  of  surrender,  towns  have  some- 
times been  destroyed,  while  the  inhabitants  were  spared 
— an  example  of  which  is  given  by  Tacitus,  in  the  taking 
of  Artaxata  by  the  Romans ;  the  inhabitants  opened  their 
gates  and  were  spared,  but  the  town  was  devoted  to  the 
flames. 

II.  Nor  does   the  law  of  nations,  in  itself,  considered 
apart  from   other  duties,  which  will  be  mentioned  here- 
after, make   any  exemption  in  favour  of  things   deemed 
sacred.     For   when    places   are   taken   by   an   enemy,  all 
things   without   exception,  whether    sacred  or  not,   must 
fall  a  sacrifice.     For  which   it  is   assigned   as   a   reason, 
that  things  which  are  called  sacred,  are  not  actually  ex- 
cepted   from   all   human   uses,  but   are   a  kind  of  public 
property,  called  sacred  indeed  from  the  general  purposes, 
to  which  they  are  more  immediately  devoted.     And  as  a 
proof  of  this,  it  is  usual,  when   one  nation  surrenders  to 

(333) 


THE   RIGHTS   OF  WAR  AND   PEACE  333 

another  state  or  sovereign,  to  surrender,  along  with  other 
rights,  every  thing  of  a  sacred  kind,  as  appears  by  the 
form  cited  from  Livy  in  a  former  part  of  this  treatise. 

And  therefore  Ulpian  says,  that  the  public  have  a 
property  in  sacred  things.  Conformably  to  which  Tacitus 
says,  that  w  in  the  Italian  towns  all  the  temples,  the  im- 
ages of  the  Gods,  and  every  thing  connected  with  reli- 
gion belonged  of  right  to  the  Roman  people. w  For  this 
reason  a  nation,  as  the  Lawyers,  Paulus  and  Venuleius 
openly  maintain,  may,  under  a  change  of  circumstances, 
convert  to  secular  uses  things,  that  have  before  been 
consecrated:  and  an  overruling  necessity  may  justify  the 
hand,  which  has  formerly  consecrated  the  object  in  em- 
ploying it  as  one  of  the  resources  and  instruments  of 
war.  A  thing  which  Pericles  once  did  under  a  pledge 
of  making  restitution:  Mago  did  the  same  in  Spain,  and 
the  Romans  in  the  Mithridatic  war.  We  read  of  the 
same  actions  done  by  Sylla,  Pompey,  Caesar,  and  others. 
Plutarch  in  his  life  of  Tiberius  Gracchus  says  that  noth- 
ing is  so  sacred  and  inviolable,  as  divine  offerings:  yet 
no  one  can  hinder  these  from  being  removed  or  applied 
to  other  purposes  at  the  pleasure  of  the  state.  Thus 
Livy  mentions  the  ornaments  of  the  temples,  which  Mar- 
cellus  brought  from  Syracuse  to  Rome,  as  acquisitions 
made  by  the  right  of  war. 

III.  What  has  been  said  of  sacred  things    and   edifices 
applies  also  to  another  kind  of  solemn  fabrics,  and  those 
are  sepulchral  structures,  which  may  be   considered   not 
merely  as  repositories   of   the    dead,    but   as   monuments 
belonging  to  the  living,  whether  families  or  states.     For 
this  reason  Pomponius  has  said,  that  these,  like  all  other 
sacred  places,  when  taken  by  an  enemy   may  lose    their 
inviolability,  and  Paulus  is  of  the  same  opinion,    observ- 
ing that  we  are  not  restrained  by   any  religious   scruple 
from  using  the  sepulchres  of  an  enemy:  for   the    stones, 
taken  from  thence,  may  be  applied  to  any  other  purpose. 
But  this  right  does  not  authorise  wanton   insult,    offered 
to  the  ashes  of  the  dead.     For  that  would  be  a  violation 
of  the  solemn  rights  of  burial,  which,    as  it   was   shewn 
in  a  preceding  part  of   this    work,    were   introduced  and 
established  by  the  law  of  nations. 

IV.  Here  it  may  be   briefly   observed,    that,    according 
to  the  law  of  nations  any  thing,  belonging  to  an  enemy, 
may  be  taken  not  only  by  open  force,  but  by  stratagem, 
provided  it  be  unaccompanied  with  treachery. 


CHAPTER    VI. 

ON   THE   ACQUISITION    OF    TERRITORY    AND    PROPERTY   BY 
RIGHT  OF  CONQUEST. 

Law  of  nature  with  respect  to  the  acquisition  of  things  captured  in 
war — Law  of  nations  on  the  same  subject  —  In  what  cases  the 
law  of  nations  confirms  the  capture  of  things  moveable  —  Lands 
acquired  by  conquest  —  Lawful  prize  cannot  be  made  of  things  not 
belonging  to  an  enemy  —  Goods  found  on  board  an  enemy's  ships 
—  Law  of  nations  authorises  the  making  prize  of  what  an  enemy 
has  taken  from  others  in  war  —  Sovereigns  may  acquire  possession 
and  dominion  through  those  employed  by  them  —  Acts  of  hostility 
divided  into  public  and  private  —  Territory  may  be  acquired  by  a 
sovereign  or  people  —  Private  and  public  captures  explained  —  Dis- 
cretionary power  of  generals  in  this  respect  —  Prizes  belong  either 
to  the  treasury,  or  to  those,  who  take  them  —  Places  sometimes 
given  up  to  be  plundered  by  the  soldiery  —  Different  methods  of 
dividing  spoils  —  Peculation,  a  portion  of  the  spoils  sometimes  given 
to  allies,  who  have  supported  the  war  —  Sometimes  given  up  to 
subjects  —  This  illustrated  by  examples — Utility  of  the  above  prac- 
tices—  Whether  things  taken  without  the  territory  of  either  of  the 
belligerent  powers  can  be  acquired  by  the  rights  of  war  —  In  what 
manner  this  right  peculiarly  applies  to  solemn  wars. 

I.  BESIDES  the  impunity  allowed  to  men  for  certain  ac- 
tions, which  have  been  mentioned  before,  there  are  other 
consequences  and  effects,  peculiar  to  the  law  of  nations, 
attending  solemn  and  formal  war.  The  law  of  nature 
indeed  authorises  our  making  such  acquisitions  in  a  just 
war,  as  may  be  deemed  an  equivalent  for  a  debt,  which 
cannot  otherwise  be  obtained,  or  as  may  inflict  a  loss 
upon  the  aggressor,  provided  it  be  within  the  bounds  of 
reasonable  punishment.  According  to  this  right,  as  we 
find  in  the  fourteenth  chapter  of  Genesis,  Abraham  de- 
voted to  God  a  tenth  part  of  the  spoils,  which  he  had 
taken  from  the  five  kings :  and  the  inspired  writer  in  the 
seventh  chapter  of  his  Epistle  to  the  Hebrews  gives  the 
same  interpretation  of  this  passage.  In  the  same  manner 
the  Greeks  too,  the  Carthaginians,  and  the  Romans,  de- 
voted a  tenth  portion  of  the  spoils  of  war  to  their  deities. 
Jacob,  in  making  a  particular  bequest  to  Joseph  above 
his  brethren,  says,  (<  I  have  given  to  thee  one  portion 
above  thy  brethren,  which  I  took  out  of  the  hand  of  the 
Amorite  with  my  sword,  and  with  my  bow.w  In  this 

(334) 


THE   RIGHTS  OF  WAR  AND   PEACE  335 

place,  the  expression,  I  TOOK,  is  used  according  to  the 
prophetic  style,  where  an  event,  that  will  for  certain  take 
place,  is  spoken  of  in  the  past  time,  and  an  action  is 
here  attributed  to  Jacob,  which  some  of  his  descendants 
were  to  perform,  supposing  the  progenitor  and  his  chil- 
dren to  be  the  same  person. 

Nor  is  it  upon  conjecture  alone  that  such  a  right  is 
founded,  but  the  divine  law  giver  himself  pronounces 
sentence  against  a  city  that  has  rejected  the  offers  of 
peace,  and  afterwards  been  taken  by  storm,  that  he  gives 
all  her  spoils  to  the  conqueror. 

II.  But  according  to  the  law  of  nations,  not  only  the 
person,  who  makes  war  upon  just  grounds;  but  any  one 
whatever,  engaged  in  regular  and  formal  war,  becomes 
absolute  proprietor  of  every  thing  which  he  takes  from 
the  enemy:  so  that  all  nations  respect  his  title,  and  the 
title  of  all,  who  derive  through  him  their  claim  to  such 
possessions.  Which,  as  to  all  foreign  relations,  consti- 
tutes the  true  idea  of  dominion.  For,  as  Cyrus,  in  Xen- 
ophon  observes,  when  the  city  of  an  enemy  is  taken, 
every  thing  that  is  taken  therein  becomes  a  lawful  prize 
to  the  conquerors;  and  Plato,  in  his  treatise  on  laws 
asserts  the  same.  Cicero  in  his  speech  against  Rullus 
says  that  Mitylene  belonged  to  the  Roman  people  by  the 
laws  of  war,  and  the  right  of  conquest;  and,  in  the  first 
book  of  his  offices,  he  observes,  that  some  things  become 
the  private  property  of  those,  who  take  possession  of 
them,  when  unoccupied,  or  of  those,  who  make  a  con- 
quest of  them  in  war. — Theophilus,  in  his  Greek  insti- 
tutes, calls  the  one  the  natural  mode  of  acquisition,  and 
Aristotle  denominates  the  other  the  natural  way  of  acqui- 
sition by  the  sword,  without  regarding  any  other  reason, 
but  the  bare  fact,  from  which  the  right  arises.  Thus 
Nerva,  the  son,  as  Paulus  the  lawyer  relates,  said  that 
property  arose  from  natural  possession,  some  traces  of 
which  still  remain  respecting  wild  animals  taken  either 
upon  the  sea,  or  upon  the  land,  or  birds  flying  in  the 
air.  It  is  seen  also  in  things  taken  in  war,  all  which 
immediately  become  the  property  of  the  first  captors. 
Now  things  are  considered  as  taken  from  an  enemy, 
when  taken  from  his  subjects. 

Thus  Dercyllides  argues,  in  Xenophon,  that  as  Phar- 
nabazus  was  an  enemy  to  the  Lacedaemonians,  every 
thing  belonging  to  Mania,  who  was  his  subject,  might 
be  seized  by  the  laws  of  war. 


336  HUGO   GROTIUS 

III.  But  in  this  question  upon  the  rights  of  war  nations 
have   decided,  that  a  person  is  understood  to  have  made 
a  capture,  when  he  detains  a  thing  in  such  a  manner,  that 
the  owner  has  abandoned  all  probable  hopes  of  recover- 
ing it,  or,   as  Pomponius,   speaking  on  the  same  subject, 
says,  when   a  thing   has   escaped   beyond   pursuit.     This 
takes  place  with  respect  to  moveable  things  in  such  a  man- 
ner, that  they  are  said  to  be  taken,  when  they  are  carried 
within  the  territories  of  the  enemy,  or  places  belonging  to 
him.     For  a  thing  is  lost  in  the  same  manner  as  it  is  recov- 
ered by  postliminium.    It  is  said  to  be  recovered  whenever 
it  returns  within  the  territories  of  its  owner's  sovereign,  that 
is,  into  places,  of  which  he  is  master.     Paulus  indeed  has 
expressly  said,  that  a  power  or  state  has  lost  a  subject,  when 
he  has  gone,  or  been  carried  out  of  the  territories  of  that 
power :  and  Pomponius  defines  a  prisoner  of  war  to  be  an 
enemy,  whom  the  troops  of  some  other  belligerent  power 
have  taken  and  carried  into  one  of  their  own  places ;  for  be- 
fore he  is  carried  into  those   places,  he   continues  still  a 
subject  of  the  enemy. 

The  law  of  nations,  in  these  respects,  treated  persons 
and  things  in  the  same  manner.  From  whence  it  is  easy 
to  understand,  what  is  meant,  when  in  another  place  it  is 
said  that  things  taken  from  an  enemy  immediately  be- 
come the  lawful  prize  of  the  captors,  but  only  upon  the 
condition  of  those  things  continuing  in  their  possession  for  a 
reasonable  and  certain  time.  Consequently  it  is  plain,  that 
ships  and  other  things  taken  at  sea  cannot  be  considered  as 
really  the  property  of  the  captors,  till  they  have  been 
carried  into  some  of  their  ports,  or  to  some  place  where 
their  whole  fleet  is  stationed.  For  in  that  case  all  hope 
of  recovery  seems  to  have  vanished.  By  a  late  regulation 
among  the  European  powers,  it  has  been  made  an  estab- 
lished maxim  of  the  law  of  nations,  that  captures  shall  be 
deemed  good  and  lawful,  which  have  continued  in  the 
enemy's  possession  for  the  space  of  twenty  four  hours. 

IV.  Lands  are  not  understood  to  become  a  lawful  pos- 
session  and    absolute    conquest   from    the    moment    they 
are  invaded.     For  although  it  is  true,  that  an  army  takes 
immediate  and  violent  possession  of  the  country  which  it 
has  invaded,    yet  that  can  only  be  considered  as  a  tem- 
porary possession,  unaccompanied  with  any  of  the  rights 
and  consequences  alluded  to  in  this  work,  till  it  has  been 
ratified  and  secured  by  some  durable  means,  by  cession, 
or  treaty.     For  this  reason,  the  land  without  the  gates  of 


337 

Rome,  where  Hannibal  encamped,  was  so  far  from  being 
judged  entirely  lost,  that  it  was  sold  for  the  same 
price  that  it  would  have  been  sold  for  before  that 
period. 

Now  land  will  be  considered  as  completely  conquered, 
when  it  is  inclosed  or  secured  by  permanent  fortifica- 
tions, so  that  no  other  state  or  sovereign  can  have  free 
access  to  it,  without  first  making  themselves  masters  of 
those  fortifications.  On  this  account  Flaccus,  the  Sicilian, 
assigns  no  improbable  conjecture  for  the  origin  of  the 
word  territory,  because  the  enemy  is  DETERRED  from  enter- 
ing it.  At  least  there  is  as  much  probability  in  this  con- 
jecture, as  in  that  of  Varro,  who  derives  it  from  the  word 
terendo,  treading  the  soil.  Frontinus  deduces  it  from 
terra,  the  earth,  and  Pomponius  from  the  TERROR  of  judi- 
cial authority  exercised  in  each  country.  Xenophon  how- 
ever in  his  book  on  tributes,  seems  to  accord  with  the 
first  of  these  opinions:  for  he  says,  that  in  time  of  war 
the  possession  of  a  country  is  kept  by  walls,  strong  holds, 
and  barriers. 

V.  It  is  a  clear  point  too,  that  for  any  thing  to  become 
a  prize  or  conquest  by  the  right  of  war,  it  must  belong 
to  an  enemy.     For  things,    within  an  enemy's  territory, 
for  instance,  in  any  of  his  towns  or  garrisons,  cannot  be 
acquired  as  property  by  the  laws  of  war,  if  the  owners 
of  those  things  are  neither  subjects  nor  confederates   of 
the   enemy.     It  is  observed   in   one  of   the   speeches   of 
Aeschines,    that   Philip,    though  at  war  with  the  Amphi- 
politans,  could  not  lawfully  take  possession  of  Amphipo- 
lis,  as  a  conquest,  it  being  a  city,  which  belonged  to  the 
Athenians.     For  as  the  enemy  is  likely  to  derive  no  assist- 
ance in  the   war,   from   things   which   neither  belong   to 
himself,  nor  to  a  confederate,  no  just  reason   can  be  as- 
signed for  taking  them,  and  the  right  of  making   things 
change  their  owners  by   force  is  of  too  odious  a  nature 
to  admit  of  any  extension. 

VI.  The  observation  usually  made,  that  all  things  on 
board  an  enemy's   ships   are   to  be   deemed  an  enemy's 
goods,   ought    not    to    be    received    as    a   STANDING   and 
ACKNOWLEDGED  rule  of  the  law  of  nations,  but  only  as  a 
maxim,  indicating  the  strong  presumption  that  both  goods 
and  vessel  belong  to  the  same  owner,  unless   clear  proof 
to  the  contrary  can  be  brought.     The  States   General  of 
Holland  made  such  a  decision  in  the  year  1338,  at  a  time 
when    the    war  with    the    Hanse-towns    raged    with    the 

22 


338  HUGO   GROTIUS 

greatest  violence,  and   the   decision   consequently   passed 
into  a  law. 

VII.  According-  to  the  law  of  nations  it  is  undoubtedly 
true,  that  things  taken  from   an   enemy    which  had  been 
captured  by  him  cannot  be   claimed   by   those,  to  whom 
they  belonged  before   they   were   in  the   enemy's  posses- 
sion, and  who  had  lost  them  in  war.     Because  the  law  of 
nations  assigned  them  to  the  enemy  by  the  first  capture, 
and  then  to  the  person,  who  took  them  from  him  by  the 
second. 

Upon  this  principle  among  others,  Jephthah  defends 
himself  against  the  Ammonites,  because  by  the  laws  of 
war  they  had  lost  the  land,  which  they  claimed,  in  the 
same  manner,  as  another  part  had  been  transferred 
from  the  Moabites  to  the  Amorites,  and  from  the 
Amorites  to  the  Hebrews.  Thus  David  too  claims  and 
divides  as  his  own,  what  he  himself  had  taken  from 
the  Amalekites,  and  the  Amalekites,  before  him,  from 
the  Philistines. 

Titus  Largius,  as  we  are  informed  by  Dionysius  of 
Halicarnassus,  when  the  Volscians  laid  claim  to  some 
possessions,  which  they  had  formerly  held,  delivered  it  as 
his  opinion  in  the  Roman  Senate,  that  "the  Romans 
were  the  fair  and  just  owners  of  what  they  had  gained 
by  the  right  of  conquest,  nor  ought  they  to  be  so  weak 
as  to  abandon  the  fruits  of  their  valour.  For  not  only 
the  people  of  that  day,  but  their  posterity  also  had  a 
right  to  a  share  of  those  possessions :  so  that  to  abandon 
them  would  be  treating  themselves  like  enemies." 

VIII.  and    IX.    One    great    point,    which    the    law    of 
nations  designed  to  establish,  was  that  the  effects  or  pos- 
sessions of  one  enemy  should  be  considered   by   another, 
as  things  having  no  owner. 

Things,  belonging  to  no  one,  became  the  property  of 
those,  who  find  or  take  them,  both  of  those,  who,  like 
sovereign  powers,  employ  others  in  such  service,  and  of 
those,  who  take  them  with  their  own  hands. 

Thus  not  only  slaves,  or  the  immediate  members  of  a 
man's  household,  but  all,  who  engage  themselves,  any 
way,  in  the  service  of  others,  may  be  said  to  acquire  for 
their  employers  all  the  property,  which  they  take  or  gain, 
even  in  those  things,  which  apparently  lie  in  common  to 
all  men,  such  as  pearls,  fish,  or  fowl. 

Modestinus  has  justly  said,  <(  that  whatever  is  naturally 
qjained,  like  a  possession,  we  may  acquire  through  the 


THE   RIGHTS   OF   WAR  AND   PEACE  339 

means  of  any  one  we  chuse  to  employ,"  and,  upon  the 
same  principle,  Paulus  observes,  that  <(in  every  acquisi- 
tion, the  exertion  of  mind  and  body  must  concur;  the  for- 
mer purely  our  own,  and  the  latter,  either  our  own,  or  that 
of  another.  In  the  same  manner  possession  may  be  taken 
for  us  by  an  attorney,  guardian,  or  trustee,  provided  they 
do  it  on  our  account  and  in  our  name. })  The  reason  of  which 
is,  because  one  man  may  naturally  be  the  voluntary  in- 
strument of  another,  with  the  consent  of  that  other.  So 
that  the  distinction  made  between  persons  in  a  servile 
and  free  condition,  as  to  the  acquisition  of  property,  is  a 
distinction  only  of  the  civil  law,  and  applicable  to  its 
rules  of  transferring,  acquiring,  and  confirming,  property. 
And  yet  the  emperor  Severus  afterwards  applied  these 
rules  to  the  natural  acquisition  of  things,  not  only  from 
motives  of  utility,  but,  as  he  avowed  himself,  from  motives 
of  equity  and  justice.  So  that,  apart  from  all  authority 
of  the  civil  law,  it  is  an  established  maxim  that  what  any 
one  can  do  for  himself,  he  can  do  through  means  of  an- 
other, and  doing  such  acts  by  another  is  the  same  as 
doing  them  himself. 

X.  A  distinction  must  be  made  between  actions  in  war, 
that  are  really  of  a  PUBLIC  NATURE,  and  the  acts  of  INDI- 
VIDUALS, occasioned  by  public  war :  by  the  latter,  individuals 
acquire  an  absolute   and   direct   property,  in   the   things, 
which  they  take,  and  by  the  former,  the  state  makes  those 
acquisitions.     Upon   this  principle  of    the  law   of  nations 
Scipio  treated  with  Masinissa,  stating  that  as  it  was  under 
the  auspices  of  the  Roman  people,  that  Syphax  was  con- 
quered and  taken  prisoner,  himself,  his  wife,  his  kingdom, 
his    territory,  his   towns,    and    subjects   inhabiting  those 
towns,  in  short,  every  thing  belonging  to  him  became  a 
lawful  prize  to  the  Roman  people.     In  the  same  manner, 
Antiochus  the  Great  maintained  that  Coelo-Syria  belonged 
to  Seleucus,  and  not   to  Ptolemy,    because   Seleucus  had 
been  the  principal  in  the  war,  to  which  Ptolemy  had  con- 
tributed  his  assistance.     In   the    fifth   book   of  Polybius, 
there  is  an  account  of  the  matter. 

XI.  Things   immoveable   are   generally   taken  by  some 
public  act,  such  as   marching  an  army  into  the  country, 
or  placing  garrisons  there.     So  that,    as   Pomponius   has 
said,  "lands  taken  from  the  enemy  become  the  property 
of  the  state,  and  form  no  part  of  the  booty  belonging  to 
the  individual  captors. })     Thus  among  the    Hebrews   and 
Lacedaemonians,  lands  that  were  made  a  conquest,  were 


340  HUGO    GROTIUS 

divided  by  lot.  The  Romans  too  either  retained  con- 
quered lands  to  let  them  out  for  rent,  sometimes  leaving 
a  small  portion  to  the  ancient  possessor,  or  divided  them 
among  colonists,  whom  they  sent  out,  or  made  them 
tributary;  innumerable  instances  of  which  we  meet  with 
in  their  histories,  their  laws,  and  treaties  on  the  ad- 
measurements of  lands. 

XII.  But  things  moveable,  whether  inanimate,  or  living, 
are  taken  either   as   connected   or  unconnected   with  the 
public  service.     When  unconnected  with  the  public  serv- 
ice, they  become  the  property  of  the  individual  captors.* 

Reference  may  here  be  made  to  the  remark  of  Celsus, 
that  (<  enemy's  goods  found  among  us  do  not  belong  to 
the  state,  but  to  the  prior  occupant.*  By  which  are 
meant  things  found  among  us  at  the  breaking  out  of  a 
war.  For  the  same  was  observed  of  persons,  when, 
under  the  same  circumstances,  they  were  considered  as 
goods  taken. 

On  this  subject  there  is  a  remarkable  passage  in  Trypho- 
ninus.  <(  Those  persons,  says  he,  who  have  gone  into  a  for- 
eign country  in  time  of  peace,  upon  the  sudden  breaking 
out  of  war,  are  made  slaves  by  those,  among  whom  it 
is  their  misfortune  to  be  found,  being  considered  as 
enemies. w 

XIII.  What  has  been  said  upon  the  law  of  nations,  al- 
lowing individuals  to  acquire  property  by  taking  it  from 
an  enemy,    must   be   understood  as   meaning   the  law  of 
nations,  prior  to  the   regulations    of  civil  laws  upon  that 
point.     For   the   capture   of   an   enemy's  goods   which  at 
first  appear   to   resemble   things   in   common,    which  any 
one  may  seize,  is  now,  like  that  of  wild  birds  or  beasts, 
subject  to  limitation   by  the   laws   of   every  state,  being 
in  some  cases   assigned  to   the   sovereign,  and  in  others, 
belonging  to  the  captors.     It  may  in  some  countries,    in- 
deed, be  introduced  as  a  rule  of  law  for  the  whole  of  an 
enemy's  goods  found  there  to  be  confiscated. 

XIV.  The  case  is  very  different    respecting    what  any 
one  takes  in  actual  engagements.     For  there  every  indi- 
vidual bears  the  character  of  his  country,  acting   in  her 
stead,  and  supporting  her  rights.     Through  the  exertions 
of  those  individuals,  the  state  acquires  both  property  and 
dominion,  with  a  power,  according   to    the   principles  of 
civilized  countries,  of  conferring  them  on  whom  she  pleases. 

*  But  such  captures  cannot  be  made  without  authority  from  the 
sovereign. 


THE   RIGHTS   OF  WAR  AND   PEACE  341 

This  is  not  a  practice  of  modern  date,  but  one  prevail- 
ing among  the  most  free  and  independent  nations  of 
remote  antiquity.  The  poets,  and  historians  of  those 
days,  describe  the  hero,  after  the  heat,  the  burden,  and 
dangers  of  the  day,  carrying  his  spoils  to  the  common 
stock,  to  be  divided  by  the  General  among  the  army, 
after  retaining  his  proper  share  to  himself. 

XXIII.*  It  is  observed  by  legal  authorities  to  be  a 
custom,  which  has  silently  gained  ground,  for  either 
allies  or  subjects,  who  engage  in  war,  without  pay,  and 
at  their  own  risque  and  expence,  to  be  rewarded  with 
the  captures  that  they  make. 

The  reason,  why  allies  have  such  a  privilege,  is  evi- 
dent. Because  one  ally  is  naturally  bound  to  another  to 
repair  the  losses,  which  he  has  sustained  by  entering 
into  a  mutual  agreement  to  support  a  common  cause. 
Besides  it  seldom  happens,  that  services  are  given  with- 
out some  consideration  in  return. 

Quintilian,  applying  the  same  reasoning  to  another 
case,  alleges  that  it  is  but  just  for  orators  and  advocates, 
who  devote  their  whole  time  and  talents  to  the  business 
of  others,  to  be  requited  for  their  services:  as  thereby 
they  preclude  themselves  from  acquiring  gain  in  any 
other  way. 

It  is  most  likely  therefore  that  some  advantage  gained 
from  the  enemy  is  always  expected,  as  a  compensation  for 
the  loss  and  risque  incurred,  unless  there  is  evidence  to 
the  contrary  from  some  antecedent  treaty,  in  which  there  is 
an  express  stipulation  for  gratuitous  assistance  and  services. 

XXIV.  Such  claim  to  a  share  of  the  spoils  is  not  equally 
evident,  where  SUBJECTS  ONLY  are  concerned.  For  the 
state  has  a  RIGHT  TO  THEIR  SERVICES.  Still  where  ALL  are 
not  engaged  in  arms,  but  only  SOME,  those,  who  give  up 
their  time  to  the  calling  of  soldiers,  and  expose  their  lives 
to  its  hazards,  have  a  right  to  be  rewarded  and  supported 
by  the  body  politic :  —  and  as  a  compensation  for  this  loss 
of  time,  and  this  personal  danger,  it  is  but  reasonable  they 
should  have  a  share  of  the  spoils. 

With  respect  to  allies  there  is  an  example  in  the  Roman 
treaty,  in  which  the  Latins  are  admitted  to  an  equal  share 
of  the  spoil,  in  those  wars,  which  were  carried  on  under 
the  auspices  of  the  Roman  people. 

*  The  translation  proceeds  from  the  XV.  to  the  XXIII.  Section  of 
the  original,  the  intermediate  Sections  being  only  a  confirmation  of  the 
preceding  arguments  by  examples  from  ancient  history.  — TRANSLATOR. 


342  HUGO   GROTIUS 

Thus  in  the  war,  which  the  Aetolians  carried  on  with 
the  assistance  of  the  Romans,  the  lands  and  cities  were 
ceded  to  the  Aetolians,  and  the  prisoners  and  moveable 
effects  were  given  to  the  Romans.  After  the  defeat  of 
king  Ptolemy,  Demetrius  gave  part  of  the  spoils  to  the 
Athenians.  Ambrose,  in  speaking  of  the  expedition  of 
Abraham,  shews  the  equity  of  this  practice.  He  asserts 
that  it  was  but  just  for  those,  who  had  assisted  him  as 
partners  in  the  danger,  to  share  in  the  prizes,  which  were 
their  due  reward. 

As  to  what  were  the  privileges  of  subjects  in  these 
respects,  we  have  a  proof  in  the  conduct  of  the  Hebrews, 
among  whom  it  was  usual  for  half  of  the  spoils  to  be  given 
to  those,  who  were  engaged  in  battle.  In  the  same 
manner  the  soldiers  of  Alexander  were  allowed  to  appro- 
priate to  themselves  whatever  they  took  from  individuals, 
except  that  it  was  usual  for  a  considerable  portion  to  be 
set  apart  for  the  king.  So  that  it  was  made  a  subject  of 
accusation  against  those  at  Arbela,  who  were  said  to  have 
entered  into  a  conspiracy  for  securing  to  themselves  every 
thing  that  was  taken,  without  contributing  a  due  propor- 
tion of  it  to  the  treasury. 

But  individuals  were  not  allowed  in  the  same  manner 
to  appropriate  to  themselves  the  public  property  of  an 
enemy,  that  is,  such  as  belonged  to  the  state.  Thus  when 
the  Macedonians  made  themselves  masters  of  the  camp  of 
Darius  at  the  river  Piramus,  and  every  thing  was  given 
up  to  plunder,  they  spared  the  royal  pavilion,  in  con- 
formity to  an  ancient  custom,  "according  to  which,  as 
Curtius  observes,  it  was  always  reserved  as  the  properest 
place,  in  which  the  victorious  prince  could  be  received. w 

There  was  a  custom  somewhat  like  this  among  the 
Hebrews  who  always  placed  the  crown  of  the  vanquished 
king  upon  the  head  of  the  conqueror,  and  assigned  to  him 
every  thing  that  was  taken,  belonging  to  the  royal  house- 
hold. We  read  of  the  same  conduct  in  Charles  the  great, 
who,  upon  conquering  the  Hungarians,  gave  up  the  pri- 
vate property  as  plunder  to  the  soldiers,  reserving  for 
the  royal  use  all  the  public  treasures. 

Some  things  indeed  are  too  inconsiderable  to  be  made 
public  property.  It  is  a  generally  received  maxim  for 
such  things  to  belong  to  the  individual  captors.* 

*  Our  author  here  speaks  of  things  taken  in  battle.  For  upon 
the  surrender  of  towns,  in  almost  all  articles  of  capitulation  it  is 
stipulated,  that  the  General  and  other  superior  officers,  and  the  officers 


THE   RIGHTS   OF   WAR   AND   PEACE  343 

This  was  the  practice  in  the  anciert  times  of  the 
Roman  republic.  A  privilege  not  unlike  this  is  some- 
times given  to  seamen,  who  serve  for  pay.  It  is  what 
the  French  call  spoils,  or  pillage,  including  all  wearing 
apparel,  and  all  gold  and  silver  under  the  value  of  ten 
crowns. 

On  this  point  different  customs  prevail  in  different 
countries.  In  Spain  sometimes  a  fifth,  and  sometimes 
a  third  was  allowed  to  the  soldiers,  and  at  others  half 
was  reserved  for  the  crown.  On  some  occasions,  a 
seventh  or  tenth  part  was  allowed  to  the  general,  and 
the  rest  belonged  to  the  captors,  except  ships  of  war, 
which  belong  entirely  to  the  crown. — Sometimes  a  division 
was  made  in  proportion  to  the  hazard  and  expence :  which 
was  the  case  among  the  Italians,  where  the  third  part  of 
the  prize  was  assigned  to  the  owner  of  the  victorious 
vessel,  another  third  to  those  who  had  merchandise  on 
board,  and  the  remaining  third  to  the  combatants. 

In  some  cases  it  happens  that  private  adventurers  are 
not  allowed  the  whole  of  their  captures,  a  certain  portion 
of  which  must  go  to  the  state  or  to  those,  who  have 
received  a  grant  of  such  prizes  from  the  state.  Thus  in 
Spain,  if  in  time  of  war  ships  are  fitted  out  by  private 
persons,  one  part  of  the  captures,  which  they  make  be- 
longs to  the  crown,  and  another  to  the  Lord  High  Admiral. 
So  likewise  in  France,  and  Holland,  the  tenth  part  of  a 
prize  belonged  to  the  Admiral,  a  fifth  also  being  pre- 
viously deducted  for  the  use  of  the  state.  But  by  land  it 
is  customary  upon  the  taking  of  towns,  and  in  battles, 
for  every  one  to  keep  the  prizes  which  he  takes.  But  in 
excursions,  every  thing  taken  becomes  the  common  stock 
of  all  engaged,  being  afterwards  divided  amongst  them 
according  to  their  respective  ranks. 

XXV.  As  a  consequence  deducible  from  the  above 
positions,  it  may  be  observed,  that  if  a  people  not  en- 
gaged in  war  be  made  mediators  in  a  doubtful  matter 
respecting  things  captured  in  war,  the  cause  must  be 
adjudged  in  favour  of  him,  who  has  on  his  side  the  laws 
and  customs  of  the  country,  which  he  has  espoused. 
But  if  no  such  right  can  be  proved,  the  prize  must  be 
adjudged  to  the  state,  rather  than  to  the  individual 
captor. —  The  maxim  indeed  of  Quintilian  can  never  be 

of  regiments  shall  preserve  their  swords  and  their  private  baggage,  and 
the  noncommissioned  officers  and  soldiers  shall  preserve  their  knap- 
sacks. 


344  HUGO   GROTIUS 

admitted,  that  the  laws  of  war  can  never  be  enforced  in 
matters,  that  may  be  decided  by  judicial  authority;  and 
that,  on  the  other  hand,  whatever  has  been  gained  by 
arms  can  be  maintained  by  force  of  arms  alone. 

XXVI.  It  was  observed  in  a  former  part  of  this  chapter, 
that  things,  NOT  BELONGING  to  an  enemy,  cannot  be  taken, 
although  found  with  him.  For  this  is  neither  consonant 
to  natural  justice,  nor  introduced  by  the  law  of  nations. 
But  if  in  those  things  the  enemy  had  any  right  connected 
with  possession,  such  as  the  right  of  pledge,  retention  or 
service,  that  would  not  obstruct  the  power  of  the  captors. 

It  is  a  disputed  point,  both  as  to  persons  and  things, 
whether  they  can  be  lawfully  taken  in  the  territory  of  a 
power  at  war  with  neither  of  the  belligerents.  In  regard 
ONLY  to  the  law  of  nations,  as  far  as  it  allows  us  to  kill 
an  enemy  wherever  he  is  found,  the  PLACE  has  nothing 
to  do  with  the  question.  But  considering  the  rights  of 
the  sovereign,  to  whom  that  territory  belongs,  he  undoubt- 
edly has  a  right  to  forbid  the  seizure  of  persons,  or  the 
capture  of  things  within  his  own  dominions:  and  may 
demand  satisfaction  for  the  violation  of  that  right.  In 
the  same  manner,  though  beasts,  that  are  wild  by  nature, 
become  the  property  of  those,  who  take  them,  still  an 
owner  may  forbid  any  one  to  commit  a  trespass  upon  his 
lands  in  order  to  take  them. 


CHAPTER  VII. 
ON  THE  RIGHT  OVER  PRISONERS  or  WAR. 

By  the  law  of  nations,  slavery  the  result  of  being  taken  in  solemn 
war  —  The  same  condition  extends  to  the  descendants  of  those 
taken  —  The  power  over  them  —  Even  incorporeal  things  may  be 
gained  by  the  rights  of  war  —  Reason  of  this — This  right  not 
prevalent  to  the  same  extent  among  Christian  powers  of  the  pres- 
ent day— The  substitute  used  in  place  of  this  right 

I.  BY  THE  law  of  nature,  in  its  primaeval  state;   apart 
from    human  institutions    and   customs,  no  men    can   be 
slaves:  and  it  is  in  this  sense  that  legal  writers  maintain 
the  opinion  that  slavery  is  repugnant  to  nature.     Yet  in 
a  former  part  of  this  treatise,  it  was  shewn  that  there  is 
nothing  repugnant  to  natural  justice,  in  deriving  the  ori- 
gin of   servitude  from   human   actions,  whether   founded 
upon  compact  or  crime. 

But  the  law  of  nations  now  under  consideration  is  of 
wider  extent  both  in  its  authority  over  persons,  and  its 
effects.  For,  as  to  persons,  not  only  those,  who  surren- 
der their  rights,  or  engage  themselves  to  servitude,  are 
considered  in  the  light  of  slaves,  but  all,  who  are  taken 
prisoners  in  public  and  solemn  war,  come  under  the  same 
description  from  the  time  that  they  are  carried  into  the 
places,  of  which  the  enemy  is  master. 

Nor  is  the  commission  of  crime  requisite  to  reduce  them 
to  this  condition,  but  the  fate  of  all  is  alike,  who  are 
unfortunantly  taken  within  the  territories  of  an  enemy, 
upon  the  breaking  out  of  war. 

II.  and  III.  In   ancient   times,  while   slavery  was  per- 
mitted  to   exist,  the    offspring,  born   during  captivity  or 
servitude,  continued  in  the  same  condition  as  the  parents. 
—  The  consequences  of  such  rules  were  of  wide  extent ;  — 
there  was   no   cruelty,  which    masters    might   not   inflict 
upon  their  slaves; — there  was  no  service,  the  performance 
of  which  they  might  not  compel ;  —  the  power  even  of  life 
and  death  was  in  their  hands.     However  the  Roman  laws 
at  length  set   bounds  to  such  wanton   power,  at   least   to 
the  exercise  of  it  within  the  Roman  territories. 

(345) 


346  HUGO   GROTIUS 

Every  thing  too,  found  upon  the  prisoner's  person, 
became  a  lawful  prize  to  the  captor.  For  as  Justinian 
observes,  one  who  was  entirely  in  the  power  of  another 
could  have  no  property  of  his  own. 

IV.  and  V.  Incorporeal  rights,  gained  by  the  enemy, 
along  with  the  person  so  captured,  cannot  be  considered 
in  the  light  of  primary  and  original  acquisitions.  And 
there  are  some  rights  so  purely  personal  in  their  nature, 
that  they  cannot  be  lost  even  by  captivity,  nor  the  duties 
attached  thereto  ever  be  relinquished.  Of  such  a  nature 
was  the  paternal  right  among  the  Romans.  For  rights 
of  this  kind  cannot  exist  but  immediately  with  the  person 
to  whom  they  originally  belonged. 

All  these  rights  to  prizes,  which  were  introduced  by 
the  law  of  nations,  were  intended  as  an  inducement  to 
captors  to  refrain  from  the  cruel  rigour  of  putting  pris- 
oners to  death;  as  they  might  hope  to  derive  some 
advantage  from  sparing  and  saving  them.  From  hence 
Pomponius  deduces  the  origin  of  the  word,  SERVUS,  or 
SLAVE,  being  one,  who  might  have  been  put  to  death, 
but  from  motives  of  interest  or  humanity  had  been 
saved. 

VI.  (being  the  IX.  of  the  original.)  It  has  long  been  a 
maxim,  universally  received  among  the  powers  of  Chris- 
tendom, that  prisoners  of  war  cannot  be  made  slaves,  so 
as  to  be  sold,  or  compelled  to  the  hardships  and  labour 
attached  to  slavery.  And  they  have  with  good  reason 
embraced  the  latter  principle.  As  it  would  be  incon- 
sistent with  every  precept  of  the  law  of  charity,  for  men 
to  refuse  abondoning  a  cruel  right,  unless  they  might  be 
allowed  to  substitute  another,  of  great,  though  somewhat 
inferior  rigour,  in  its  place. 

And  this,  as  Gregoras  informs  us,  became  a  traditionary 
principle  among  all  who  professed  one  common  religion; 
nor  was  it  confined  to  those,  who  lived  under  the  authority 
of  the  Roman  empire,  but  prevailed  among  the  Thes- 
salians,  the  Illyrians,  the  Triballians,  and  Bulgarians. — 
Though  such  an  abolition  of  slavery,  and  mitigation  of 
captivity  may  be  considered  as  of  trivial  import,  yet 
they  were  effects  produced  by  the  intriduction  of  the 
Christian  religion,  especially  upon  recollection  that 
Socrates  tried,  but  without  effect,  to  prevail  upon  the 
Greeks  to  forbear  making  slaves  of  each  other. 

In  this  respect  the  Mahometans  act  towards  each 
other  in  the  same  manner  as  Christians  do.  Though  it 


THE   RIGHTS   OF  WAR  AND   PEACE  347 

is  still  the  practice  among  Christian  powers  to  detain 
prisoners  of  war,  till  their  ransom  be  paid,  the  amount 
of  which  depends  upon  the  will  of  the  Conqueror,  unless 
it  has  been  settled  by  express  treaty.  The  right  of  de- 
taining such  prisoners  has  sometimes  been  allowed  to  the 
individuals,  who  took  them,  except  where  the  prisoners 
were  personages  of  extraordinary  rank,  who  were  always 
considered  as  prisoners  of  war  to  the  state. 


CHAPTER  VIII. 
ON  EMPIRE  OVER  THE  CONQUERED. 

Civil  and  sovereign  jurisdiction  acquired  by  conquest  —  Effects  of  such 
acquisition  —  Absolute  power  or  mixed  power  gained  by  conquest  — 
Incorporeal  rights  acquired  in  the  same  manner  —  Thessalian  bond 
considered. 

I.  IF  INDIVIDUALS  can  reduce  each  other  to  subjection, 
it  is  not  surprising  that  states  can  do  the   same,  and  by 
this  means  acquire  a  civil,  absolute,  or  mixed,  dominion. 
So  that,  in  the  language  of  Tertullian,  victory  has  often 
been  the  foundation  of  dominion,  and  it  often  happens, 
as  Quintilian  remarks,  that  the  boundaries  of  states  and 
kingdoms,  of  nations   and  cities,  can   only  be  settled  by 
the  laws  of  war. 

Quintus  Curtius  relates  of  Alexander,  that  he  said,  it 
was  for  conquerors  to  dictate  laws,  which  the  conquered 
were  bound  to  receive.  This  has  always  been  a  general 
opinion  and  rule,  thus  Ariovistus,  in  Caesar,  laid  it  down 
as  an  indubitable  right  of  war,  for  the  conqueror  to  im- 
pose whatever  terms  he  pleased  upon  the  conquered,  nor 
did  he  suppose  the  Roman  people  would  allow  any  one  to 
interpose  with  them  in  the  discretionary  use  of  this 
right. 

By  conquest,  a  prince  succeeds  to  all  the  rights  of  the 
conquered  sovereign  or  state;  and  if  it  be  a  common- 
wealth, he  acquires  all  the  rights  and  privileges,  which 
the  people  possessed.  He  gains  the  same  right,  which 
the  state  had  before,  to  alienate  the  possessions,  or  to 
transmit  them  if  he  chuses  to  his  descendants,  by  which 
means  they  will  become  a  patrimonial  territory. 

II.  The  right  of  conquest  may  go  even  beyond  this.    A 
state  may  hereby  lose  its  political  existence,  so  far  as  to 
form  an  appendage  to  another  power,  which  was  the  case 
with  the  Roman  provinces:  or  if  a  king  engaged  in  war 
against   a  state,  at  his  own   expence,  has   reduced   it   to 
complete    subjection,    his   authority   over    it   becomes   an 
absolute,  rather   than   a  limited  sovereignty.      It  can  no 
longer  be  called  an  independent  state*  but,  by  the  right 

(348) 


THE   RIGHTS   OF   WAR   AND   PEACE  349 

of  conquest,  forms  an  integral  part  of  the  prince's  im- 
mediate dominions.  Xenophon  in  drawing  the  character 
of  Agesilaus,  commends  him  for  requiring  no  other  serv- 
ices and  obedience  of  the  cities  he  had  conquered,  than 
what  is  usually  paid  by  subjects  to  their  lawful  sover- 
eigns. 

III.  From  hence  it  will  be  easy  to  understand  what  is 
meant  by  a  mixed  government,  composed  partly  of  civil, 
and  partly  of  absolute  power ; —  it  is  a  government,  where 
subjection  is  united  with  some  degree  of  personal  liberty. 

We  sometimes  read  of  nations,  that  have  been  so  far 
subdued,  as  to  be  deprived  of  the  use  of  all  warlike  arms, 
being  allowed  to  retain  no  instruments  of  iron,  but  the 
implements  of  husbandry;  and  of  others,  that  have  been 
compelled  to  change  their  national  customs  and  language. 

IV.  States  as  well  as  individuals  may  lose   their  prop- 
erty by  the  laws  of  war :  and  even  a  voluntary  surrender 
is  in  reality  nothing  more    than    giving   up   what  might 
have  been  taken  by  force.     For  as  Livy  says,  where   all 
things  submit  to  the  power  of  arms,  the  conqueror  may 
impose    whatever    terms,    and    exact    whatever   fines   he 
pleases.      Thus    the   Roman    people   by  the    victories   of 
Pompey  acquired    all   the    territories,    which    Mithridates 
had  gained  by  conquest. 

The  incorporeal  rights  too,  belonging  to  one  state, 
may  pass  to  another  by  the  rights  of  conquest.  Upon 
the  taking  of  Alba,  the  Romans  retained  all  the  rights 
belonging  to  that  city.  From  hence  it  follows,  that  the 
Thessalians  were  released  from  the  obligation  of  paying 
a  sum  of  money,  which  they  owed  to  the  Thebans ;  Alex- 
ander, upon  the  taking  of  Thebes,  having,  as  a  con- 
queror, forgiven  the  debt.  Nor  is  the  argument  used  by 
Quintlian  in  favour  of  the  Thebans,  at  all  convincing: 
he  maintains  that  nothing  but  what  is  of  a  tangible  na- 
ture can  pass  by  right  of  conquest,  a  class  of  things  to 
which  incorporeal  rights  can  never  be  reduced:  and  that 
there  is  a  material  difference  between  inheritance  and 
victory,  the  former  of  which  may  convey  incorporeal 
rights,  but  the  latter  can  give  nothing  except  things  of 
a  solid  and  visible  substance. 

But  on  the  other  hand  it  may  be  justly  said,  that  who- 
ever is  master  of  the  persons,  is  master  also  of  all  the 
rights  and  things,  which  are  vested  in  those  persons, 
who  are  in  that  case  considered  as  having  nothing  of 
their  own.  Indeed  if  any  one  should  leave  to  a  con- 


350  HUGO   GROTIUS 

quered  people  their  rights,  as  a  state,  still  there  are  some 
things  belonging  to  that  state,  which  he  might  appropri- 
ate to  himself.  For  it  is  in  his  own  power  to  determine, 
to  what  extent  his  generosity,  or  the  exertion  of  his 
right  shall  go.  Caesar  imitated  the  conduct  of  Alexan- 
der, in  forgiving  the  Dyrrachians  a  debt,  which  they 
owed  to  some  one  of  the  opposite  party.  But  the  kind 
of  war,  in  which  Caesar  was  engaged  does  not  fall  within 
the  rules  of  the  law  of  nations. 


CHAPTER    IX. 

OF   THE    RIGHT    OF    POSTLIMINIUM. 

Origin  of  the  term,  postliminium  —  Where  it  takes  effect  — Certain 
things  recoverable  thereby  —  In  what  cases  the  right  of  postlimin- 
ium prevails  in  peace,  as  well  as  war — What  rights  are  recover- 
able, and  what  rights  not  recoverable  —  When  a  people  is  not 
entitled  to  the  right  of  postliminium  —  Extent  of  civil  law  in  these 
cases  —  Deserters — Ransomed  prisoners  —  Subjects — Lands  recov- 
ered by  right  of  postliminium  —  Distinction  formerly  observed  with 
respect  to  movable  things — Modern  practice. 

I.  THE  professors  of  law  in  former  ages  have  given  no 
more  satisfactory  account  of  the  rights  of   postliminium, 
than  they  have   done    of   those,  respecting   things    taken 
from  the  enemy.     The  subject  has  been  more  accurately 
handled  by  the  ancient   Romans,  but  often    still    with    a 
considerable  degree  of  confusion,  so  that  a  reader  cannot 
easily  distinguish,  what  part  they  assign  to  the  province 
of  the  law  of  nations,  and  what  part  to  the  civil  law  of  Rome. 

Amidst  a  great  variety  of  opinions,  upon  the  meaning 
of  the  word,  postliminium,  that  of  Scaevola  seems  the 
most  natural,  who  derives  it  from  the  word  post,  signi- 
fying a  return  after  captivity,  and  limen  the  boundary  or 
entrance  of  the  house,  or  from  limes,  a  public  boundary. 
Thus  the  ancients  called  exile  or  banishment,  eliminium, 
that  is,  sending  any  one  out  of  the  boundaries  of  the 
country. 

II.  Postliminium    therefore,    according   to    its    original 
signification,  means    the    right,    accruing   to   any  one   in 
consequence  of  his  return  home  from  captivity.     Pompo- 
nius  defines  the  right  of  postliminium  to   take  place  the 
moment  any  one  enters  a  town  or  garrison,  of  which  his 
sovereign  is  master;   but    according   to    Paulus    he   must 
have   entered    within    the    territories  of  his  own  country 
before  he  can  be  entitled  to  that  right. 

Upon  this  principle  nations  have,  in  general,  gone  so 
far,  as  to  allow  the  right  of  postliminium  to  take  place, 
where  any  person,  or  indeed  any  thing,  coming  within 
the  privileges  of  postliminium,  have  arrived  within  the 
territory  of  a  friendly  or  allied  power. 

By  the  term  friends,  or  allies,  used  in  this  place,  are 
not  simply  meant,  those  who  are  at  peace  with  another 

(35i) 


352  HUGO    GROTIUS 

power,  but  those  who  are  engaged  in  the  same  war, 
and  in  a  common  cause  with  that  power.  So  that  all, 
who  have  come  into  the  territories  of  such  powers,  are 
protected  under  the  pledge  of  public  faith.  For  it  makes 
no  difference  with  respect  to  persons  or  things,  whether 
they  are  in  the  territories  of  those  powers,  or  in  their 
own. 

In  the  territory  of  a  friendly  power,  who  is  not  engaged 
in  the  same  cause  with  either  of  two  belligerent  parties, 
prisoners  of  war  do  not  change  their  condition,  unless 
it  has  been  agreed  to  the  contrary  by  express  treaty;  as 
in  the  second  treaty  between  the  Romans  and  Cartha- 
ginians, it  was  stipulated  that  if  any  prisoners,  taken 
by  the  Carthaginians  from  powers  friendly  to  the  Ro- 
mans, should  come  into  ports  subject  to  the  Roman 
people,  their  liberty  might  be  claimed:  and  that  powers 
friendly  to  the  Carthaginians  should  enjoy  the  same 
privilege.  For  this  reason,  the  Roman  prisoners  taken 
in  the  second  Punic  war,  when  sent  into  Greece,  had  not 
the  right  of  postliminium  there,  the  Greeks  being  entirely 
neutral,  consequently  they  could  not  be  released,  till  they 
were  ransomed. 

III.  According  to  the  language  of  the  ancient  Romans, 
even    free    men     might    be    restored     by    the    right    of 
postliminium. 

Gallus  ^Elius,  in  the  first  book  of  his  explanation  of 
law-terms,  defines  a  person  restored  to  his  original  situa- 
tion by  the  right  of  postliminium,  to  be  one,  who  had 
gone  from  his  own  country,  in  a  free  condition,  to 
another,  and  returned  to  his  own  in  consequence  of  such 
right.  By  the  right  of  postliminium  a  slave  also  who 
has  fallen  into  the  hands  of  an  enemy,  upon  his  release 
from  thence,  returns  to  the  service  of  his  former  master. 

As  to  the  law  of  postliminium,  horses,  mules,  and  ships 
are  considered  in  the  same  light  as  slaves.  And  whatever 
advantage  this  law  gives  any  one  in  recovering  persons 
or  things  from  an  enemy,  the  enemy  in  his  turn  has  equal 
advantage  from  the  same  law. 

But  modern  lawyers  have  made  a  distinction  between 
two  kinds  of  postliminium,  by  one  of  which,  persons 
returned  to  their  former  condition,  and  by  the  other, 
things  are  recovered. 

IV.  The  right  of  postliminium  may  extend  to  those,  who 
are  seized  and  detained  in  an  enemy's  country  upon  the 
breaking  out  of  war.     For  though  during  the  continuance 


THE   RIGHTS   OF   WAR   AND   PEACE  353 

of  that  war,  there  may  be  reason  for  detaining  them,  in 
order  to  weaken  the  enemy's  strength,  yet,  upon  the  con- 
clusion of  a  peace,  no  such  motive  and  pretence  can  be 
devised  for  their  release  being  refused  or  delayed.  It  is 
a  settled  point  therefore  that  upon  peace  being  made, 
prisoners  of  the  above  description  always  obtain  their 
liberty,  their  claim  to  it  being  universally  acknowledged. 

With  respect  to  other  kinds  of  prisoners,  every  one 
used  what  he  wished  to  be  thought  his  right,  except 
where  fixed  rules  were  prescribed  by  treaty.  And  for 
Jhe  same  reason,  neither  slaves,  nor  things  taken  in  war 
are  restored  upon  a  peace,  except  express  stipulations  be 
made  to  that  purpose.  A  conqueror  too,  in  general, 
wishes  to  have  it  believed  that  he  had  a  right  to  make 
such  acquisition;  and  indeed  the  departure  from  such  a 
rule  might  give  rise  to  wars  without  end. 

V.  and  VI.  A  prisoner  of  war,  upon  his  release,  and 
return  to  his  own  country,  is  entitled  to  all  his  privileges 
THERE,  and  indeed  to  everything  either  corporeal,  or  in- 
corporeal, which  he  might  have  before  possessed  in  a 
NEUTRAL  STATE,  at  the  time  of  his  captivity.  For  if  such 
a  state,  in  order  to  preserve  her  neutrality,  considered 
his  captivity  as  a  matter  of  right  on  the  part  of  the 
enemy,  so  also,  in  order  to  shew  her  impartiality,  she 
cannot  lawfully  abridge  his  right  to  any  thing  he  may 
reclaim  upon  his  release.  The  controul  therefore,  which 
the  person,  to  whom  the  prisoner  belonged  by  the  right 
of  war,  had  over  his  effects,  was  not  absolutely  uncondi- 
tional: for  he  might  lose  it,  even  against  his  will,  when- 
ever the  prisoner  came  again  under  the  protection,  or 
within  the  territories,  of  his  own  sovereign.  Along  with 
the  prisoner  therefore  he  would  lose  everything,  which 
was  considered  as  an  appendage  to  his  person. 

In  cases  where  effects  taken  in  war  have  been  alien- 
ated, a  question  arises,  whether  the  law  of  nations  con- 
firms the  title,  and  secures  the  possession  of  the  person, 
who  has  derived  or  purchased  them  from  him,  who  was 
master  of  them  by  the  rights  of  war,  by  having  the  pris- 
oner in  his  custody  at  the  time  of  alienation,  or  whether 
such  things  are  recoverable;  supposing  the  things  to  be 
in  a  neutral  territory. 

A  distinction  seems  proper  to  be  made  between  things 

recoverable   by  postliminium,  and   things   excepted   from 

that  right:    so  that   every  alienation  of  the  former  must 

be  qualified   and   conditional,  but   that  of  the  latter  may 

23 


354  HUGO   GROTIUS 

be  absolute.  By  things  alienated  may  be  understood  even 
those,  of  which  a  gift  has  been  made,  or  to  which  the 
owner  has  relinquished  every  claim. 

VII.  Upon  any  one's  returning  to  his  former  condition 
by  the  law  of  postliminium,  all  his  rights  are  restored  as 
fully,  as  if  he  had  never  been   in  the   hands  and   power 
of  the  enemy. 

VIII.  The  case  of  those  however,  who  have  been  con- 
quered by  the  arms  of   an  enemy,  and  have  surrendered 
themselves,  forms  an  exception  to  this  rule;  because  en- 
gagements of  that  kind  must   be   valid,  and  honourably 
adhered    to   according  to    the  law    of   postliminium.     So 
that  during  the  time  of  a  truce,  the  right  of  postliminium 
cannot  be  claimed. 

But  where  a  surrender  has  been  made  without  any 
express  or  positive  convention  the  right  of  postliminium 
exists  in  all  its  force. 

IX.  What  has  been   said   of   individuals  applies   to  na- 
tions: so  that  a  free  people,  who  have  been   subjugated, 
upon    being    delivered   from    the   yoke  of   the  enemy  by 
the  power  of  their  allies,  will   recover  their   former  con- 
dition. 

But  if  the  whole  population  that  constituted  a  state 
has  been  dispersed,  the  people  can  no  longer  be  con- 
sidered as  the  same :  nor  does  the  law  of  nations  in  such 
a  case  enforce  the  right  of  postliminium  for  the  restora- 
tion of  all  effects  formerly  belonging  to  that  people. 
For  as  the  identity  of  a  ship,  or  any  other  material 
object,  can  only  be  ascertained  by  the  permanent  union 
of  its  original  parts:  so  a  nation  can  no  longer  be  re- 
garded as  the  same,  when  every  peculiar  characteristic 
belonging  to  it  is  effaced. 

The  state  of  Saguntum  therefore  was  no  longer  judged 
to  be  the  same,  when  it  was  restored  to  its  ancient  pos- 
sessors, at  the  expiration  of  eight  years :  nor  could  Thebes 
any  longer  be  deemed  the  original  city,  as  its  inhabit- 
ants had  been  sold  by  Alexander  for  slaves.  From 
hence  it  is  evident,  that  the  Thebans  could  not,  by  the 
right  of  postliminium,  recover  the  sum  of  money,  which 
the  Thessalians  had  owed  them:  and  that  for  two  rea- 
sons: because,  in  the  first  place,  they  were  anew  people; 
and,  secondly,  because  Alexander  at  the  time  that  he 
was  absolute  master  of  the  city  had  a  right,  if  he 
thought  proper,  to  relinquish  the  claim  to  that  debt, 
which  he  had  actually  done.  Besides,  a  debt  is  not  in 


THE   RIGHTS   OF   WAR   AND   PEACE  355 

the  number   of   things   recoverable  by  the  right  of  post- 
liminium. 

The  rules,  respecting  a  state,  are  not  much  unlike 
those  laid  down  by  the  ancient  Roman  law,  which  made 
marriage  a  dissoluble  tie,  so  that  it  could  not  be  re- 
stored by  the  right  of  postliminium :  but  a  new  consent, 
and  a  new  contract  were  necessary. 

X.  By  the   Roman  civil  law  deserters  were   excluded 
from  the  right  of  postliminium. 

XI.  and  XII.  It  is  a  point  of  much   importance  to  the 
subject,  and  it  was   before   declared   in   the   affirmative, 
that  nations,  which  have  been  under  a  foreign  yoke,  re- 
cover their  former  condition,  even  though  their  deliver- 
ance has  not  been  effected  by  their  former  sovereign,  but 
by  some   ally.     It  is  a  settled   rule,    where   there   is  no 
express  treaty  to  the   contrary.     At  the   same   time  it  is 
but  reasonable  that  such  ally  be  indemnified  for  the  ex- 
pences  incurred  in  accomplishing  that  deliverance. 

XIII.  Among  things  within  the  right  of  postliminium, 
lands  in  particular  attract  our  attention.  For,  as  Pom- 
ponius  observes,  upon  the  expulsion  of  an  enemy  lands 
naturally  revert  to  their  former  masters.  And  in  this 
sense  expulsion  is  understood  to  take  place  from  the  time 
that  his  free  and  open  access  to  a  territory  is  entirely 
cut  off. 

Thus  the  Lacedaemonians,  after  taking  Aegina  from 
the  Athenians,  restored  it  to  its  ancient  owners.  Jus- 
tinian and  other  emperors  restored  to  the  heirs  of  the 
ancient  possessors  of  the  lands,  which  had  been  recov- 
ered from  the  Goths  and  Vandals,  still  reserving  against 
those  owners  all  prescriptive  rights,  which  the  Roman 
laws  had  introduced. 

The  privileges  belonging  to  lands  attach  to  every  right 
also  connected  with  the  soil.  For  religious  or  conse- 
crated places,  that  had  been  taken  by  an  enemy,  when 
recovered  returned,  as  Pomponius  has  said,  to  their  former 
condition. 

Upon  the  same  principle  it  was  provided  by  a  law  in 
Spain,  that  provinces,  and  all  other  hereditary  jurisdic- 
tions, particularly  supreme  jurisdictions,  should  return  to 
the  original  possessors  by  the  right  of  postliminium ;  and 
those  of  an  inferior  kind,  if  reclaimed  within  the  space 
of  four  years.  Except  that  citadels  lost  by  war  always 
belonged  to  the  crown,  in  whatever  manner  they  were 
recovered. 


356  HUGO   GROTIUS 

XIV.  On  the  contrary  a  general  opinion  prevails,  that 
moveable   property,    which   constitutes    part  of  a  lawful 
prize,   is   not   recoverable  by   the   right  of  postliminium. 
So  that  things  acquired  by  purchase,  wherever  they  are 
found,  continue  the  property  of  the  purchaser.     Nor  has 
the   original   owner  a  right  to  claim  them,    when   found 
in  a  neutral  state,  or  even  carried   into  his  own  territory. 

Things  useful  in  war,  as  we  find,  were  formerly  an 
exception  to  this  rule :  an  exception,  which  seems  to  have 
been  favoured  by  the  law  of  nations  in  order  to  induce 
men  the  more  readily  to  provide  them,  in  the  hopes  of 
recovering  them,  if  lost.  And  this  indulgence  was  the 
more  easily  granted,  as  most  nations,  at  that  period,  in 
all  their  customs,  seem  to  have  had  an  eye  to  a  state  of  war- 
fare.—  Among  the  things,  coming  under  this  description, 
ships  of  war,  and  merchant-ships  are  reckoned,  but 
neither  gallies,  nor  pleasure-boats:  mules  also  are  enu- 
merated; but  only  such  as  are  used  to  carry  baggage: 
horses  and  mares  too;  but  only  such  as  are  broken  in  to 
obey  the  bridle.  And  these  are  things,  the  bequest  of 
which  the  Roman  law  confirmed,  and  which  might  come 
into  the  division  of  an  inheritance. 

Arms  and  cloathing  indeed  are  useful  in  war,  but  still 
they  were  not  recoverable  by  the  right  of  postliminium; 
because  the  laws  were  by  no  means  inclined  to  favour 
those,  who  lost  either  in  war :  and  such  a  loss  was  deemed 
a  disgrace,  as  we  find  from  many  parts  of  history.  And 
in  this  respect,  a  distinction  was  made  between  a  soldier's 
arms  and  his  horse :  because  the  latter  might  easily  break 
loose,  and  fall  into  an  enemy's  hands  without  any  fault 
of  his  rider.  This  distinction  in  moveable  things  seems 
to  have  prevailed  in  the  western  parts  of  Europe,  under 
the  Goths,  even  as  far  down  as  to  the  times  of  Boetius. 
For  in  explaining  the  Topics  of  Cicero,  he  speaks  of  this 
right,  as  a  general  custom  of  his  day. 

XV.  But  in   later   times,    if   not    before,    this    distinc- 
tion seems  to   have   been    abolished.     For   all  intelligent 
writers  speak  of  moveable   effects  as   not  recoverable  by 
the    right   of   postliminium,    and   it    has    evidently   been 
decided  so,  in  many  places,  with  respect  to  ships. 

XVI.  The  right  of  postliminium   is  quite  unnecessary, 
before    the    things    taken    have   been    carried   into    some 
place  of  which  the  enemy  is  master,  although  they  may 
be  in  his  possession :  for  they  have  not  yet  changed  their 
owner,  by  the  law  of  nations.      And,  according  to   the 


THE   RIGHTS   OF  WAR  AND   PEACE  357 

opinions  of  Ulpian  and  Javolenus,  the  law  of  postliminium 
is  no  less  superfluous,  where  goods  have  been  taken  by 
robbers  and  pirates,  because  the  law  of  nations  does  not 
allow  THEIR  possession  of  the  goods  to  convey  any  change, 
or  right  of  property  to  THEM. 

Upon  this  ground,  the  Athenians  wished  to  consider 
Philip,  as  RESTORING,  and  not  GIVING  them  Halonesus,  of 
which  they  had  been  robbed  by  pirates,  from  whom  he 
had  taken  it  again.  For  things  taken  by  pirates  may  be 
reclaimed,  wherever  they  are  found;  except  that  NATURAL 
JUSTICE  requires  that  the  person,  who  has  gained  them 
out  of  their  hands,  at  his  own  expence,  should  be  indem- 
nified, in  proportion  to  what  the  owner  himself  would 
willingly  have  spent  for  their  recovery. 

XVII.  But  a    different   maxim   may  be   established   by 
the  CIVIL  LAW.     Thus   by  the   law  of   Spain,  ships   taken 
from    pirates    become    the    lawful    prize   of   the    captors: 
which  may  seem  a   hardship   upon   the   original   owners; 
but  in  some  cases  individual  interest   must  be   sacrificed 
to  the  public  good:  especially  where  the  danger  and  dif- 
ficulty of  retaking    the   ships    is    so    great.*     But   such  a 
law    will    not    prevent    foreigners    from   asserting    their 
claims. 

XVIII.  It  was  rather  a  surprising  maxim  in  the  Roman 
law,  which  established  the  right  of  postliminium,  not  only 
between  hostile  powers,  but  between   all   foreign   states, 
and,  in  some   cases,  between  those,  who  were   members 
of   the  Roman  empire.     But   this  was   only  a  vestige   of 
the  rude  and  pastoral  ages,  before  society  was  perfectly 
formed.     So    that    even    between   nations,  who  were   not 
engaged  in  public  war  with  each  other,  a  kind  of  licence 
resembling  that  of  war  prevailed. 

In  order  to  prevent  such  a  licence  from  proceeding  to 
all  the  calamities  and  slaughter  of  war,  the  laws  of  cap- 
tivity were  introduced:  and,  as  a  consequence  of  this, 
postliminium  took  place,  which  might  be  considered  as  a 
great  step  towards  the  formation  of  equal  treaties,  from 
the  rules  of  which  pirates  and  robbers  were  excluded,  and 
which  indeed  they  themselves  despised. 

XIX.  In  our  times,  the  right  of  making  prisoners,  ex- 
cept in  war,  has  been  abolished  not  only  among  Christian 
states,  but  even  among  the  greater  part  of  Mahometans, 

*<(The  end  of  such  a  law  is  to  animate  soldiers  and  privateers  to 
pursue  robbers  and  pirates,  by  the  hopes  of  possessing  things  taken 
even  from  the  subjects  of  the  state. w — Barbeyrac. 


358  HUGO   GROTIUS 

those  bands  of  society,    which  nature  designed  to  estab- 
lish amongst  men,  being  in  some  measure  restored. 

But  the  ancient  law  of  nations  seems  still  in  force 
against  any  rude  or  barbarous  people,  who,  without  any 
declaration  or  cause  of  war,  consider  all  mankind  as  ene- 
mies. A  decision  has  lately  been  made  in  the  principal 
chamber  of  the  parliament  of  Paris,  declaring  all  effects 
belonging  to  the  subjects  of  France,  and  taken  by  the 
Algerines,  a  people  always  engaged  in  predatory  and 
maritime  warfare  with  all  other  countries,  if  retaken,  to 
belong  to  the  captors.— At  the  same  time  it  was  decided, 
that,  in  the  present  day,  ships  are  not  reckoned  among 
things  recoverable  by  the  right  of  postliminium. 


CHAPTER   XL* 

THE   RIGHT   OF   KILLING    ENEMIES,    IN   JUST   WAR,    TO   BE 
TEMPERED  WITH  MODERATION  AND  HUMANITY. 

In  what  cases  strict  justice  allows  the  destruction  of  an  enemy  —  Dis- 
tinction between  misfortune  and  guilt  —  Between  principals  and 
accessories  in  war — Distinction  between  unwarrantable  and  excus- 
able grounds  of  promoting  war  —  Sometimes  right  and  laudable  to 
forbear  punishing  an  inveterate  enemy  —  Every  possible  precaution 
requisite  to  spare  the  innocent  —  Especially  children,  women,  and 
the  aged,  except  they  have  committed  atrocious  acts  —  Clergymen, 
men  of  letters,  husbandmen,  merchants,  prisoners  —  Conditional  sur- 
render not  to  be  rejected — Unconditional  surrender — Exceptions  to 
the  above  rules,  some  of  them  considered,  and  refuted  —  Delinquents 
when  numerous  to  be  spared  —  Hostages  to  be  spared  —  Unnecessary 
effusion  of  blood  to  be  avoided. 

I.  AND  II.  CICERO,  in  the  first  book  of  his  offices,  has 
finely  observed,  that  (<  some  duties  are  to  be  observed  even 
towards  those,  from  whom  you  have  received  an  injury. 
For  even  vengeance  and  punishment  have  their  due 
bounds."  And  at  the  same  time  he  extols  those  ancient 
periods  in  the  Roman  government,  when  the  events  of 
war  were  mild,  and  marked  with  no  unnecessary  cruelty. 

The  explanations  given  in  the  first  chapter  of  this  book 
will  point  out  the  cases,  where  the  destruction  of  an 
enemy  is  one  of  the  rights  of  lawful  war,  according  to  the 
principles  of  strict  and  internal  justice,  and  where  it  is  not 
so.  For  the  death  of  an  enemy  may  proceed  either  from 
an  accidental  calamity,  or  from  the  fixed  purpose  of  his 
destruction. 

No  one  can  be  justly  killed  by  design,  except  by  way  of 
legal  punishment,  or  to  defend  our  lives,  and  preserve  our 
property,  when  it  cannot  be  effected  without  his  destruc- 
tion. For  although  in  sacrificing  the  life  of  man  to  the 
preservation  of  perishable  possessions,  there  may  be 
nothing  repugnant  to  strict  justice,  it  is  by  no  means 
consonant  to  the  law  of  charity. 

But  to  justify  a  punishment  of  that  kind,  the  person 
put  to  death  must  have  committed  a  crime,  and  such  a 

*  The  tenth  Chapter  chiefly  containing  remarks  that  have  been  inter- 
spersed in  other  parts  of  the  work,  is  omitted  here. — TRANSLATOR. 

(359) 


36o  HUGO   GROTIUS 

crime  too,  as  every  equitable  judge  would  deem  worthy 
of  death.  Points,  which  it  is  unnecessary  to  discuss  any 
further,  as  they  have  been  so  fully  explained  in  the 
chapter  on  punishments. 

III.  In  speaking  of  the   clamities  of   war,  as  a  punish- 
ment, it  is  proper  to  make  a  distinction  between  misfor- 
tune and  injury.     For  a  people  may  sometimes  be  engaged 
in  war  against   their   will,  where   they   cannot   be   justly 
charged  with  entertaining  hostile  intentions. 

Upon  this  subject,  Velleius  Paterculus  observes  that 
<(  to  blame  the  Athenians  for  revolting,  at  the  time  they 
were  beseiged  by  Sylla,  betrays  a  total  ignorance  of 
history.  For  the  Athenians  always  continued  so  steady 
in  their  attachment  to  the  Romans,  that  their  fidelity 
became  a  proverbial  expression.  Yet  their  situation  at 
that  time  excused  their  conduct,  overpowered  by  the 
arms  of  Mithridates,  they  were  obliged  to  submit  to  a 
foe  within,  while  they  had  to  sustain  a  siege  from  their 
friends  without.8 

IV.  and  V.   Between  complete   injuries    and   pure  mis- 
fortunes   there    may    be    sometimes    a    middle    kind    of 
actions,    partaking    of    the    nature    of    both,    which    can 
neither  be  said  to  be  done  with  known  and  wilful  inten- 
tion, nor  yet  excused  under  colour  of  ignorance  and  want 
of   inclination.     Acts    of   pure    misfortune   neither  merit 
punishment,  nor  oblige  the  party  to  make  reparation  for 
the  loss  occasioned.     Hence  many  parts  of  history  supply 
us  with  distinctions   that   are   made   between   those   who 
are  the  authors  of  a  war,  and  principals  in  it,  and  those 
who  are  obliged  to  follow  others,  as  accessories  in  the  same. 

VI.  But  respecting  the  authors  of  war,  a  distinction 
s  to  be  made  also,  as  to  the  motives  and  causes  of  war: 
some  of  which  though  not  actually  just,  wear  an  appear- 
ance of  justice,  that  may  impose  upon  the  well  meaning. 
The  writer  to  Herennius  lays  it  down  as  the  most  equi- 
table vindication  of  injury,  where  /the  party  committing 
it,  has  neither  been  actuated  by  revenge,  nor  cruelty; 
but  by  the  dictates  of  duty  and  an  upright  zeal. 

Cicero,  in  the  first  book  of  his  offices,  advises  the  spar- 
ing of  those,  who  have  committed  no  acts  of  atrocity 
and  cruelty  in  war,  and  that  wars,  undertaken  to  main- 
tain national  honour,  should  be  conducted  upon  principles 
of  moderation.  And,  in  one  of  his  letters,  adverting  to 
the  war  between  Pompey  and  Caesar,  he  describes  the 
struggle  between  those  two  illustrious  men,  as  involved 


THE   RIGHTS   OF   WAR   AND   PEACE  361 

in  so  much  obscurity  of  motives  and  causes,  that  many 
were  perplexed  in  deciding  which  side  to  embrace.  In 
his  speech  too  for  Marcellus,  he  remarks  that  such  uncer- 
tainty might  be  attended  with  error,  but  could  never  be 
charged  with  guilt. 

VII.  Such  forbearance  in  war  is  not  only  a  tribute   to 
justice,  it  is   a    tribute    to   humanity,    it  is   a  tribute   to 
moderation,  it  is  a  tribute  to  greatness  of   soul.     It  was 
in  this  moderation,  says  Sallust,    the   foundation   of   Ro- 
man greatness  was  laid.     Tacitus  describes   his   country- 
men as  a  people  no  less  remarkable  for  their  courage  in 
the  field,  than  for  their  humanity  to  the  vanquished  and 
suppliant. 

On  this  subject,  there  is  a  brilliant  passage  in  the 
fourth  book  to  Herennius,  where  it  is  said,  (<  It  was  an 
admirable  resolution  of  our  ancestors,  never  to  deprive  a 
captive  prince  of  his  life.  For  it  would  be  truly  a  viola- 
tion of  common  justice  to  abuse,  by  wanton  cruelty  and 
rigour,  the  power  over  those,  whom  fortune  has  put  into 
our  hands,  by  reducing  them  from  the  high  condition, 
in  which  she  had  placed  them  before;  their  former  en- 
mity is  forgotten.  Because  it  is  the  characteristic  of  brav- 
ery to  esteem  opponents  as  enemies,  while  contending 
for  victory,  and  to  treat  them  as  men,  when  conquered, 
in  order  to  soften  the  calamities  of  war,  and  improve  the 
terms  and  relations  of  peace.  But  it  may  be  asked,  if 
the  enemy  now  treated  with  this  indulgence  would  have 
shewn  the  same  lenity  himself.  To  which  a  reply  may 
be  made,  that  he  is  not  an  object  of  imitation  in  what 
he  WOULD  have  done,  so  much  as  in  what  he  OUGHT  to 
have  done.* 

VIII.  Though  there  may   be   circumstances,    in   which 
absolute  justice  will  not    condemn   the    sacrifice   of  lives 
in  war,  yet  humanity  will   require  that  the  greatest  pre- 
caution should   be   used   against   involving  the    innocent 
in    danger,    except    in    cases    of    extreme    urgency   and 
utility. 

IX.  After  establishing  these  general  principles,    it  will 
not  be  difficult  to  decide  upon  particular   cases.     Seneca 
says,  that  (<  in  the  calamities  of  war  children  are  exempted 
and  spared,  on  the  score  of  their   age,  and  women  from 
respect  to   their   sex. w      In    the    wars   of   the    Hebrews, 
even  after  the  offers  of  peace   have    been    rejected,    God 
commands  the  women  and  children  to  be  spared. 

Thus  when  the   Ninevites  were   threatened  with   utter 


362  HUGO   GROTIUS 

destruction,  on  account  of  their  grievous  crimes,  a  miti- 
gation of  the  sentence  was  allowed,  in  compassion  to  the 
many  thousands,  who  were  of  an  age  incapable  of  mak- 
ing a  distinction  between  right  and  wrong. 

If  God,  from  whose  supreme  gift  the  life  of  man  pro- 
ceeds, and  on  whose  supreme  disposal  it  depends,  pre- 
scribes to  himself  a  rule  like  this,  it  is  surely  incumbent 
upon  men,  who  have  no  commission,  but  for  the  welfare 
and  preservation  of  the  lives  of  men,  to  act  by  the  same 
rule.  Thus  age  and  sex  are  equally  spared,  except  where 
the  latter  have  departed  from  this  privilege  by  taking 
arms,  or  performing  the  part  of  men. 

X.  The  same  rule  may  be   laid  down  too  with  respect 
to  males,  whose  modes  of  life  are   entirely  remote   from 
the  use  of  arms.     And  in  the  first  class  of  this   descrip- 
tion may  be  placed  the  ministers  of  religion,  who,  among 
all  nations,  from  times  of  the  most  remote  antiquity  have 
been  exempted  from  bearing  arms. — Thus,  as  may  be  seen 
in  sacred  history,    the  Philistines,    being  enemies   of  the 
Jews,  forbore   doing  harm  to  the   company  of  prophets, 
that  was  at  Gaba:  and  David  fled  with  Samuel  to  another 
place,   which   the   presence  of  a  prophetic  company  pro- 
tected from  all  molestation  and  injury. 

Plutarch  relates  of  the  Cretans,  that  when  all  order 
among  them  was  entirely  broken  by  their  civil  broils, 
they  abstained  from  offering  violence  to  any  member  of 
the  priesthood,  or  to  those  employed  in  the  sacred  rites 
belonging  to  the  dead.  From  hence  the  Greeks  came  to 
denote  a  GENERAL  MASSACRE  by  the  proverbial  expression 

Of    NO    ONE    BEING    LEFT    TO    CARRY    FIRE    TO    THE    ALTAR. 

Equally  privileged  with  the  holy  priesthood  are  those, 
who  devote  their  lives  to  the  pursuit  of  letters,  and  other 
studies  beneficial  to  mankind. 

XI.  Diodorus  bestows   an  encomium  upon  the  Indians, 
who,  in  all   their  wars  with  each   other,  forbore  destroy- 
ing   or    even   hurting   those  employed   in   husbandry,  as 
being  the  common   benefactors  of   all.     Plutarch   relates 
the  same   of  the  ancient   Corinthians  and    Megarensians, 
and   Cyrus    sent   a   message    to  the   king  of   Assyria   to 
inform  him   that   he  was  willing   to  avoid   molesting   all 
who  were  employed  in  tilling  the  ground. 

XII.  To   the  above  catalogue  of  those  exempted   from 
sharing  in  the  calamities  of  war,  may  be  added  merchants, 
not  only  those  residing  for  a  time  in  the  enemy's  country, 
but  even  his  natural-born,  and  regular  subjects:  artisans 


THE   RIGHTS   OF   WAR   AND   PEACE  363 

too,  and  all  others  are  included;  whose  subsistence  de- 
pends upon  cultivating  the  arts  of  peace. 

XIII.  and  XIV.  More  civilized  manners  having  abol- 
ished the  barbarous  practice  of  putting  prisoners  to  death, 
for  the  same  reason,  the  surrender  of  those,  who  stipu- 
late for  the  preservation  of  their  lives  either  in  battle, 
or  in  a  siege,  is  not  to  be  rejected. 

The  Romans,  when  investing  towns,  always  accepted 
offers  of  capitulation,  if  made  before  the  battering  ram 
had  touched  the  walls.  Caesar  gave  notice  to  the  Atu- 
atici,  that  he  would  save  their  city,  if  they  surrendered, 
before  the  battering  ram  was  brought  up.  And  in  mod- 
ern times  it  is  the  usual  practice,  before  shells  are  thrown, 
or  mines  sprung,  to  summon  places  to  surrender,  which 
are  thought  unable  to  hold  out — and  where  places  are 
stronger,  such  summons  is  generally  sent,  before  the 
storming  is  made. 

XV.  and  XVI.  Against  these  principles  of  natural  law 
and  equity  an  objection  is  sometimes  derived  from  the 
necessity  of  retaliation,  or  striking  terror,  in  cases  of 
obstinate  resistance.  But  such  an  objection  is  by  no 
means  just.  For  after  a  place  has  surrendered,  and  there 
is  no  danger  to  be  apprehended  from  the  prisoners,  there 
is  nothing  to  justify  the  further  effusion  of  blood. —  Such 
rigour  was  sometimes  practised,  where  there  were  any 
enormous  acts  of  injustice,  or  any  violation  of  faith;  it 
was  practised  also  upon  deserters,  if  taken. 

Sometimes,  where  very  important  advantages  may  at- 
tend striking  a  terror,  by  preventing  the  same  crimes  in 
future  from  being  committed,  it  may  be  proper  to  exer- 
cise the  right  of  rigour  in  its  full  extent.  But  an  obsti- 
nate resistance,  which  can  be  considered  as  nothing  but 
the  faithful  discharge  of  a  trust,  can  never  come  within 
the  description  of  such  delinquencies,  as  justify  extreme 
rigour. 

XVII.  Where  delinquencies  indeed  are  such  as  deserve 
death,  but  the  number  of  offenders  is  very  great,  it  is 
usual,  from  motives  of  mercy,  to  depart  in  some  degree 
from  the  right  of  enforcing  the  whole  power  of  the  law: 
the  authority  for  so  doing  is  founded  on  the  example  of 
God  himself,  who  commanded  such  offers  of  peace  to  be 
made  to  the  Canaanites,  and  their  neighbours,  the  most 
wicked  of  any  people  upon  the  face  of  the  earth,  as 
might  spare  their  lives  upon  the  condition  of  their  be- 
coming tributaries. 


364  HUGO   GROTIUS 

XVIII.  From  the    opinions   advanced    and  maintained 
above,  it  will  not  be  difficult  to  gather  the  principles  of 
the  law  of  nature  respecting  hostages. 

At  the  time,  when  it  was  a  general  opinion  that  every 
one  had  the  same  right  over  his  life,  as  over  his  property, 
and  that  right,  either  by  express  or  implied  consent  was 
transferred  from  individuals  to  the  state,  it  is  not  sur- 
prising that  we  should  read  of  hostages,  though  harmless 
and  innocent  as  individuals,  being  punished  for  the 
offences  of  the  state:  and,  in  this  case,  the  consent  of 
the  state  to  such  a  regulation  implies  that  of  individuals, 
who  have  originally  resigned  their  own  will  to  that  of 
the  public ;  in  whom,  after  such  resignation,  it  indubitably 
vested. 

But  when  the  day-spring  rose  upon  the  world,  men, 
obtaining  clearer  views  of  the  extent  of  their  power, 
found  that  God,  in  giving  man  dominion  over  the  whole 
earth,  reserved  to  himself  the  supreme  disposal  of  his 
life,  so  that  man  cannot  resign  to  anyone  the  right  over 
his  own  life  or  that  of  another. 

XIX.  By  way  of  conclusion  to  this    subject  it   may  be 
observed,  that  all  actions  no  way  conducive   to  obtain  a 
contested  right,  or  to  bring   the   war  to  a   termination, 
but  calculated  merely  to   display  the    strength   of    either 
side  are  totally  repugnant    to  the  duties   of   a    Christian 
and  to  the  principles   of   humanity.     So   that   it   behoves 
Christian  princes  to  prohibit   all  unnecessary  effusion   of 
blood,  as  they  must  render  an  account  of  their  sovereign 
commission  to   him,  by   whose    authority,  and  in   whose 
stead,  they  bear  the  sword. 


CHAPTER  XII. 
ON  MODERATION  IN  DESPOILING  AN  ENEMY'S  COUNTRY. 

Lawfulness  of  despoiling  an  enemy's  country  —  Forbearance  of  using 
this  right,  where  things  may  be  useful  to  ourselves,  and  out  of  an 
enemy's  power  —  Forbearance  in  the  hopes  of  speedy  conquest,  or 
where  things  are  not  immediately  necessary  to  support  an  enemy, 
and  aid  him  in  maintaining  the  war  —  Buildings  for  the  purposes  of 
religion  not  to  be  wantonly  destroyed — Advantages  of  this  mod- 
eration. 

I.  ONE  of  the  three  following  cases  is  requisite  to  jus- 
tify any  one  in  destroying  what  BELONGS  to  another: 
there  must  be  either  such  a  necessity,  as  at  the  original 
institution  of  property  might  be  supposed  to  form  an  ex- 
ception, as  if  for  instance  any  one  should  throw  the  sword 
of  another  into  a  river,  to  prevent  a  madman  from  using 
it  to  his  destruction :  still  according  to  the  true  principles 
maintained  in  a  former  part  of  this  work  he  will  be  bound 
to  repair  the  loss:*  or  there  must  be  some  debt,  arising 
from  the  non-performance  of  an  engagement,  where  the 
waste  committed  is  considered  as  a  satisfaction  for  that 
debt:  or  there  must  have  been  some  aggressions,  for 
which  such  destruction  is  only  an  adequate  punish- 
ment. 

Now,  driving  off  some  of  our  cattle,  or  burning  a  few 
of  our  houses,  can  never  be  pleaded  as  a  sufficient  and 
justifiable  motive  for  laying  waste  the  whole  of  an  enemy's 
kingdom.  Polybius  saw  this  in  its  proper  light,  observ- 
ing, that  vengeance  in  war  should  not  be  carried  to  its 
extreme,  nor  extend  any  further  than  was  necessary  to 
make  an  aggressor  atone  justly  for  his  offence.  And  it 
is  upon  these  motives,  and  within  these  limits  alone,  that 
punishment  can  be  inflicted.  But  except  where  prompted 
to  it  by  motives  of  great  utility,  it  is  folly,  and  worse 
than  folly,  wantonly  to  hurt  another. 

But  upon  duly  and  impartially  weighing  the  matter, 
such  acts  are  oftener  regarded  in  an  odious  light,  than 
considered  as  the  dictates  of  prudent  and  necessary 

*  See  b.  ii.  chap.  ii.  sect.  9. 

(365) 


366  HUGO    GROTIUS 

counsels.  For  the  most  urgent  and  justifiable  motives 
are  seldom  of  long-  continuance,  and  are  often  suc- 
ceeded by  weightier  motives  of  a  more  humane  descrip- 
tion. 

II.  It  may  be  possible,  under   some   circumstances,  to 
detain  what  belongs  to  an   enemy,  so  as  to  prevent  his 
deriving  advantage  from  it,  in  which  case  it  would  be  an 
unnecessary  and  wanton  act  to  destroy  it.     And  to  such 
circumstances   the   divine   law   has    an    eye,    in  ordering 
wild    trees   to   be   made   use   of  for   the   construction   of 
works  in  a  siege,  while  fruit-trees,  and  every  thing  neces- 
sary   for  the    support   of    man,  ought,  if  possible,  to  be 
spared. 

III.  Where    there    is    an    expectation    also    of    speedy 
victory  and  conquest,  prudence  will   dictate   to  a  general 
or  commander  of  any   kind  the   necessity  of  forbearing 
from    all    acts   of    destruction,  by   authorising  and   com- 
mitting which  he  would   only  be   injuring  those  posses- 
sions, that  are  likely  to  come  into  the  hands  of  his  own 
state  or  sovereign.      Thus,  as   we  are  informed  by  Plu- 
tarch, when  Philip  had  overrun   Thessaly,  destroying  and 
plundering    the    whole    country,    Flaminius    ordered    his 
troops  to  march  in  a  regular  manner,  as  through  a  ceded 
country  which  had  become  their  own. 

IV.  In  the  next  place,  it  is  unnecessary  to  destroy  an 
enemy's  country,  when  he  has  other  sources,  from  which 
he  can  draw  his  supplies,  as  for  instance,  the  sea  or  any 
adjoining  territory.     Archidamus,  in  Thucydides,  attempt- 
ing to  dissuade  the  Lacedaemonians  from  a  war  with  the 
Athenians,  asks  them,  what  object  they  propose  to  them- 
selves by  such  a  war  ?  he  asks  them  if  they  suppose  that 
Attica  can  easily  be  laid  waste  owing  to  the  advantage, 
which  their  troops  have  in  superiority  and  numbers  ?  but, 
says  he,  they  have  other  dominions  to  furnish  them  with 
supplies,  and  they  can  avail   themselves  also  of  maritime 
importations.      So  that    under   such    circumstances,  it   is 
best  to   leave  agriculture  unmolested,  even  on   the   fron- 
tiers of  each  side :  a  practice  lately  followed   in  the  wars 
of  the   low   countries,  where    contributions    were  paid  to 
both  parties,  in  return  for  such  protection. 

V.  There  are  some  things  of  such  a  nature,  as  to  con- 
tribute, no  way,  to  the  support  and  prolongation  of  war: 
things  which  reason  itself  requires  to  be  spared  even  dur- 
ing the  heat   and   continuance  of  war.     Polybius  calls  it 


THE   RIGHTS  OF  WAR  AND   PEACE  367 

brutal  rage  and  madness  to  destroy  things,  the  destruction 
of  which  does  not  in  the  least  tend  to  impair  an  enemy's 
strength,  nor  to  increase  that  of  the  destroyer:  Such  are 
Porticos,  Temples,  statues,  and  all  other  elegant  works 
and  monuments  of  art.  Cicero  commends  Marcellus  for 
sparing  the  public  and  private  edifices  of  Syracuse,  as  if 
he  had  come  with  his  army  to  protect  THEM,  rather  than 
to  take  the  place  by  storm. 

VI.  As  this  rule  of  moderation  is  observed  towards  other 
ornamental  works  of  art,   for   the   reasons  before  stated, 
there  is  still  greater   reason,  why  it  should  be   obeyed  in 
respect   to   things   devoted   to   the  purposes   of  religion. 
For  although  such  things,  or  edifices,  being  the  property 
of  the  state  may,  according  to  the  law  of  nations,  be  with 
impunity  demolished,   yet   as    they  contribute  nothing  to 
aggravate  the  calamities,  or  retard  the  successes  of  war,  it 
is  a  mark  of  reverence  to  divine  things  to  spare  them,  and 
all    that    is    connected    therewith:    and    more    especially 
should  this  rule   be    adhered  to  among   nations,  worship- 
ping the  same  God  according   to   the   same   fundamental 
laws,  although  differing  from  each  other  by  slight  shades 
of   variation    in    their   rights   and   opinions.     Thucydides 
says  that  it  was  a  law  among  the  Greeks  of  his  time,  in 
all  their  invasions   of   each  other's  territories,  to  forbear 
touching  the  edifices   of   religion:   and  Livy  likewise  ob- 
serves that,  upon  the  destruction  of  Alba  by  the  Romans, 
the  temples  of  the  Gods  were  spared. 

VII.  What  has  been  said  of  the   sacred  edifices  of  re- 
ligion applies  also  to  monuments  raised  in  honour  of  the 
dead,  unnecessarily  to  disturb  whose  ashes  in  their  repose 
bespeaks  a  total   disregard   to   the  laws   and  ties  of  our 
common  humanity. 

VIII.  Although  it  does  not  fall  within  the  province  of 
this  treatise  to  inquire  into    the  utility    of  war  in  all  its 
various  branches,  but  only  to    regulate   its   practices   by 
confining    them    within    due    and    lawful   bounds;  yet  it 
will  not  be  improper  to  observe  that  rules   and  practices 
derive  much  of  their  merit  from  the   utility,  with  which 
they  are  attended.     So   that  one  great  quality,  to  recom- 
mend the  moderation  above  alluded  to,  will  be   found  in 
its  preventing  the  enemy  from  being  driven  to  those  re- 
sources,   which    men   never    fail,    at  last,    of    finding  in 
despair.     It  is  a  just  remark  made  by  some  Theologians, 
that  all  CHRISTIAN   princes   and    rulers,    who   wish   to  be 


368  HUGO   GROTIUS 

found  SUCH  in  the  sight  of  God  as  well  as  that  of  men, 
will  deem  it  a  duty  to  interpose  their  authority  to  pre- 
vent or  to  suppress  all  UNNECESSARY  violence  in  the  taking 
of  towns :  for  acts  of  rigour  can  never  be  carried  to  an 
extreme  without  involving  great  numbers  of  the  innocent 
in  ruin.  And  practices  of  that  kind,  besides  being  no 
way  conducive  to  the  termination  of  war,  are  totally  re- 
pugnant to  every  principle  of  Christianity  and  justice. 


CHAPTER  XIII. 

ON  MODERATION  IN  MAKING  CAPTURES  IN  WAR. 

Effects  belonging  to  the  subjects  of  an  enemy,  and  taken  detained  as  a 
pledge  or  debt  —  Not  to  be  taken  by  way  of  punishment  for  another's 
offence  —  The  debt  or  obligation,  arising  from  a  state  of  war,  illus- 
trated by  examples —  Forbearance  in  the  exercise  of  such  a  right  from 
principles  of  humanity. 

I.  THE  capture  of  an  enemy's  goods,  even  in  JUST  WAR, 
is  not,  in  ALL  CASES,  perfectly  justifiable,  nor  is  the  captor 
always  exempt  from  the  ties  of  restitution.  For  strictly 
speaking,  according  to  the  rules  of  pure  justice,  it  is  not 
lawful  to  seize  or  detain  goods  except  to  the  exact  amount 
of  the  debt  which  the  enemy  has  incurred.  Indeed  goods 
may  be  detained  beyond  that,  as  a  necessary  pledge  of 
security,  but  still  upon  the  condition  of  being  restored,  as 
soon  as  the  danger  has  ceased:  RESTORED  EITHER  LITERALLY, 

OR   BY    SOME    PROPER   COMPENSATION    BEING    MADE. 

Here  then  is  a  right  of  capture,  which  confers  no  right 
of  property  or  acquisition.  But  when  any  thing  may  be- 
come due  to  us,  either  from  a  penalty  or  the  non-per- 
formance of  an  engagement,  in  both  cases  a  right  to  an 
enemy's  goods,  if  they  can  be  taken,  is  acquired.  By  the 
latter  kind  of  debt  not  only  the  effects  of  the  debtor 
himself,  but  those,  belonging  to  his  subjects,  may  accord- 
ing to  the  principles  introduced  by  the  law  of  nations  be 
taken  as  a  security. 

This  right  of  the  law  of  nations  is  very  different  from 
that  established  in  impunity  alone,  or  depending  upon 
the  external  force  of  judicial  authority.  For  as  by  our 
private  consent  the  person  with  whom  we  contract  ac- 
quires not  only  an  external  and  legal  right  over  our 
property,  but  an  internal  right,  proceeding  from  con- 
science, so  he  acquires  the  same  right  by  a  kind  of 
common  consent,  which  virtually  comprehends  the  con- 
sent of  individuals,  in  which  sense  the  law  is  called  the 
common  compact  or  covenant  of  the  state. 

And  in  transactions  of  this  kind  it  is  most  likely  that 
nations  approving  of  such  a  rule,  introduced  a  law,  which 
24  (369) 


370  HUGO   GROTIUS 

might   not  only   prevent  greater   evils,    but   also  enable 
every  one  to  attain  his  own  right. 

II.  But  in  the  other  kind  of  debt  arising  from  penalty, 
or  punishment,  it  does  not  appear,  that  nations  consented 
to  the  establishment  of  any   such  right  over  the   effects 
of  subjects.     For  binding  the   property  of  one   man  for 
the  offence  of  another  is  a  kind  of  odious  act,  and  there- 
fore   ought    not    to   be    extended    farther    than   the    law 
appears  to  have  actually  decreed.     Nor  is  the  advantage 
derived    from    the   latter,    by   any   means   equal    to    that 
attending  the  former  kind  of   debt.     For  what  is  due  to 
us  from  damage,  or  the  non-performance  of  a  treaty  may 
be  considered  as  a   part  of  our  effects,  but  it  is  not  so 
with  the  obligation  to  punishment,  which  is  purely  of  a 
personal  nature,  therefore    no  loss   is   incurred  by  relin- 
quishing this  right. 

Nor  is  the  argument  in  the  least  weakened  by  what 
was  said  before  *  respecting  the  Athenian  law.  For  there 
it  was  maintained  that  subjects  were  not  bound  to  suffer, 
because  the  state  was  amenable  to  punishment,  but  in 
order  to  compel  the  state  to  do  what  she  ought  to  do, 
in  bringing  the  guilty  to  punishment:  a  debt  arising 
from  duty,  and  relating  to  obligations  of  the  former  kind, 
rather  than  to  those  of  the  latter.  For  there  is  a  differ- 
ence between  being  obliged  to  punish  another  and  being 
one's  self  amenable  to  punishment:  tho'  the  latter  may 
frequently  arise  from  the  neglect  of  doing  the  former, 
but  still  there  is  the  same  distinction  between  them,  as 
between  cause  and  effect. 

The  goods  of  subjects  can  only  be  taken  by  way  of 
reprisal  in  return  for  other  goods  taken  by  the  enemy; 
but  they  can  never  be  taken  as  a  punishment  for  the 
neglect  of  bringing  offenders  to  justice.  The  delinquents 
themselves,  in  the  number  of  whom  may  be  reckoned 
those,  who  have  neglected  to  discharge  their  duty  in  this 
respect,  must  answer  for  such  offences. 

III.  The  goods  of  subjects  may  be   taken,  and  a  prop- 
erty acquired  therein,  not  only  in    order   to   obtain    pay- 
ment of  the  ORIGINAL   debt,    which    occasioned    the    war, 
but  of  OTHER    debts   also,  to   which   the    same    war   may 
have  given  birth.     And  in  this  sense  the  words  of  those 
are  to  be  taken,  who  maintain,  that  captures  in  war  are 
not  a  perfect   compensation   for   the  principal   debt,  but 
only  used   as   a   means    to    enforce    satisfaction   for    the 

*See  b.  iii.  ch.  ii.  of  this  work. 


THE   RIGHTS  OF   WAR  AND   PEACE  371 

damages  sustained  from  aggressions.  Thus  the  Romans, 
in  their  dispute  with  Antiochus,  as  related  by  Livy, 
thought  it  but  right  for  that  king  to  make  reparation  for 
all  the  expenses  incurred  in  the  war,  which  he  had  oc- 
casioned. Indeed  any  terms,  that  may  be  justly  imposed 
upon  the  conquered  may  justly  be  enforced  by  war. 

IV.  The  right  of  seizing  the  goods  of  the  innocent  sub- 
ject of  an  enemy  seems  to  have  been  introduced,  in  order 
to  compel  the  original  aggressor,  or  debtor  to  grant 
redress  for  the  injury  he  had  done:  and  although  his 
falling  on  the  innocent  may  be  no  way  repugnant  to 
what  is  legally  right,  it  is  in  some  measure  a  departure 
from  the  principles  of  humanity.  On  the  other  hand, 
history,  especially  the  Roman  history,  abounds  in  ex- 
amples of  humanity,  where  lands  have  been  restored  to 
a  conquered  enemy,  upon  condition  of  their  belonging  to 
the  STATE,  and  becoming  subject  to  the  payment  of  a 
tribute. 


CHAPTER  XV.* 

ON  MODERATION  IN  ACQUIRING  DOMINION. 

How  far  internal  justice  permits  us  to  acquire  dominion  —  Moderation, 
in  the  use  of  this  right  over  the  conquered,  laudable  —  Incorporat- 
ing them  with  the  conquerors  —  Allowing  them  to  retain  their 
dominions  —  Placing  garrisons  therein  —  Imposing  tributes  or  other 
burdens  —  Utility  of  such  moderation  —  Change  in  the  form  of  a 
conquered  government  —  The  conquered  permitted  to  retain  some 
part  of  their  former  liberties  —  Especially  in  matters  of  religion  — 
Clemency  to  be  shewn. 

I.  THAT    equity   and   moderation    towards   individuals, 
which  are  so  highly  extolled,  are  still  more  deserving  of 
admiration,    when    exercised   towards   nations    and    king- 
doms; where  injustice  would  be  attended  with  more  signal 
calamities,  and  moderation  with  more  beneficial  effects. 

In  just  war  the  right  of  dominion  over  a  people,  and 
the  sovereign  power,  which  that  people  possess,  may  be 
acquired  as  well  as  any  other  right.  But  the  claims  to 
such  a  right  ought  by  no  means  to  be  prosecuted  be- 
yond indemnity  for  aggression,  and  security  against 
future  evils. 

But  this  motive,  so  necessary  to  be  observed,  espe- 
cially in  all  treaties  of  peace,  as  well  as  in  the  use  of 
victory,  is  often  confounded  with  others.  In  other  points 
a  sovereign  prince  or  state  may  relinquish  a  claim  from 
a  principle  of  moderation,  but  where  the  future  security 
of  their  subjects  is  concerned,  it  is  an  act  of  cruelty 
rather  than  of  moderation  to  relax  too  far  in  favour  of 
a  conquered  enemy. 

II.  Aristotle   has,    more   than   once,    said,    that  war  is 
undertaken  for  the   sake   of  peace,  and  toil  endured  in 
order  to  obtain  rest.     And  in   the   same   manner,  Cicero 
has  observed,  that  men  go  to  war,  that  they  may  live  in 
peace  without   molestation   and  injury.     War  too,  as  we 
are  instructed  by  the   teachers   of  true  religion,  may  be 
made,  to  remove  every  thing  that  interrupts,  and  stands 
in  the  way  of  peace. 

*The  translation  proceeds  from  the  XIII.  to  the  XV.  Chapter  of 
the  original. — TRANSLATOR. 
(372) 


THE   RIGHTS   OF   WAR  AND   PEACE  373 

In  the  primitive  ages,  as  we  find  from  history,  wars  in 
general  were  made  to  preserve  territories  rather  than  to 
extend  them.  And  any  deviation  from  this  rule  was 
thought  unlawful:  thus  the  prophet  Amos  reproves  the 
Ammonites  for  their  love  of  making  conquests. 

III.  The   prudent   moderation    of   the    ancient  Romans 
approaches  nearly  to   this  model  of   primitive  innocence. 
For  although   they   made    conquests,  they  mitigated   the 
fate  of  the  conquered  by  incorporating  them  with  them- 
selves. 

IV.  Another  mark  of  moderation  in  the  use  of  victory 
is  leaving  to  conquered  kings,  or  nations  the  dominions, 
which  they  LAWFULLY  held  before. 

Polybius  highly  extols  the  merit  and  wisdom  of  Antig- 
onus,  who,  having  Sparta  in  his  power,  allowed  the 
inhabitants  to  retain  their  national  polity  and  freedom. 

V.  Sometimes    indeed   a  conqueror,  though   allowing  a 
subjugated    people    to    retain    their    dominion    and    sov- 
ereignty, must  provide  for   his  own    security,  by  placing 
garrisons  in  their  country. 

VI.  Contributions     too     are     frequently    imposed    and 
levied,  not  so  much   by  way   of  indemnity   for  expences 
incurred,  as  for  a  future  security  between  the  conqueror, 
and  the  conquered  country.     Upon  the  same  principle,  as 
was  before*  observed,  in   explaining   the   nature   of  un- 
equal treaties,  conditions  may  be  imposed  also  requiring 
a  conquered  power  to  deliver  up  a  certain  number  of  her 
ships  and  forts,  and  to   reduce    her  troops    to   a  limited 
number. 

VII.  But  leaving  to   conquered  powers   a  part   or  the 
whole  of  their  dominions    is   not   only   sometimes  an  act 
of  justice  and  humanity,  but  an  act  of  sound  policy  also. 
Among  other  of  Numa's  institutions,  his  manner  of  cele- 
brating the  rites  of  TERMINUS,  the   DEITY  OF  BOUNDARIES, 
is  much  commended;  for  he  prohibited  the  use  of  blood 
in  those  ceremonies,  as  an   intimation    that   nothing  was 
more  conducive  to  the  peace  and  harmony  of  the  world, 
than  for  every  nation  to  confine  herself  within  her  proper 
bounds. 

In  conformity  to  which  maxim  Floras  observes,  that  it 
is  more  easy  to  make  conquests  than  to  keep  them.  To 
which  rule  Plato,  in  his  third  book  of  Laws,  adapts  the 
proverbial  expression  of  Hesiod,  that  HALF  is  BETTER 

THAN    THE    WHOLE. 
*  B.  ii.  ch.  xv.  sect  7. 


374  HUGO   GROTIUS 

VIII.  The  Lacedaemonians  and  the  Athenians  anciently 
claimed  no  farther   dominion   over  conquered   cities  and 
states,  than  purely  wishing  them  to  adopt  forms  of  gov- 
ernment like  their  own,  the  Lacedaemonians  living  under 
an  aristocratic,    and    the    Athenians   under   a  democratic 
system.     But  whether  such  changes  were  conducive  to  a 
conqueror's  security,  it  is  not  to  our  present   purpose   to 
examine. 

IX.  If  it  is  not  perfectly  safe  to  forbear  exercising  ANY 
dominion  over  a  conquered  enemy,  the  matter  may  be  so 
regulated  as  to  leave    him    some    portion    of   his    former 
sovereignty  and  power.     Thus  among  the  Jews  the  scep- 
tre remained  with  the  Sanhedrim,  even   after   Archelaus 
was  deprived  of  his   kingdom;    and   Alexander  in  many 
cases  allowed  Darius  to  remain  a  sovereign  over   others, 
while  he  required  of  him  submission  to  himself. 

X.  Even  though  a  conquered    power   was    deprived   of 
all  sovereignty,  she  might  be  allowed  to  retain   some   of 
her  laws,  privileges,  and  magistracies  of  inferior  impor- 
tance.    Thus,  Pliny,  in  his  letters,  informs  us,  that  in  the 
proconsular  province  of   Bithynia,    the   city   of  Apamaea 
was    allowed    to   regulate   the    form   of  her   government 
at  her  own  pleasure,  and,  in  other  places,  the  Bithynians 
were  permitted  to  retain  their  own  magistrates,  and  their 
own  senate. 

XI.  This  indulgence  ought  to  be  shewn  to  every  peo- 
ple, especially  in  their  attachment  to  the  religion  of  their 
forefathers,  of  which  they  should  never  be  deprived  but 
with  their  own  consent  and  conviction.     An   indulgence, 
which  Agrippa  in  his  address  to  Caius,  as  cited  by  Philo 
in  the  account   of   his    embassy,    approves   of,    as  highly 
grateful  to  the  conquered  people,  and  by  no  means  prej- 
udicial to  the  conqueror.     At  the  same  time  a  conqueror 
will  take  care  that  erroneous  opinions  do  not   prevail  to 
the  prejudice  and  overthrow  of  true  religion,  as  was  done 
by  Constantine  upon  his  crushing  the  party  of   Licinius, 
and  afterwards  by  the  Franks  and  other  kings. 


CHAPTER  XVI. 

ON  MODERATION  WITH  RESPECT  TO  THINGS  EXCLUDED 

FROM  THE  RIGHT  OF   POSTLIMINIUM  BY 

THE  LAW  OF  NATIONS. 

Internal  justice  requires  the  restitution  of  things  taken  from  others  by 
an  enemy  in  unjust  war  —  Deductions  made  —  Subjects  and  coun- 
tries, if  unjustly  seized  by  an  enemy,  to  be  restored  to  their  original 
sovereign  —  The  time,  when  the  obligation  to  restore  them  expires, 
defined  —  What  is  to  be  done  in  doubtful  cases. 

I.  How  far  things  taken  in  just  war  become  the  prop- 
erty  of   the    captors   has  been   explained  before.      From 
which    a   deduction  must  be  made  of  things  recoverable 
by  the  right  postliminium,  those  being  no  captures  at  all. 

But  things,  taken  in  unjust  war,  are  to  be  restored, 
not  only  by  those,  who  have  taken  them,  but  by  others 
also  into  whose  hands  they  may  have  by  any  means  fallen. 
For,  as  the  Roman  lawyers  say,  no  one  can  convey  to 
another  a  greater  right  than  he  himself  possesses.  The 
original  captor  had  no  just  title  to  any  property  therein, 
neither  can  the  person,  deriving  his  title  through  him, 
establish  any  better  claim. — A  SECOND  or  THIRD  possessor 
may  have  acquired  a  property  therein,  which  the  law 
presumes  he  has  a  right  to,  till  the  contrary  be  shewn, 
and  for  which  an  action  may  be  maintained.  Yet  it  is  a 
right  of  which  he  cannot  honestly  avail  himself  against 
the  real  owner,  from  whom  it  was  unjustly  taken. 

II.  and  III.  Therefore   such   things  are  to  be  restored 
to  those,  from  whom  they  were  taken,  which  we  find  in 
ancient  times  was  often   done.     Livy  in   relating  the  de- 
feat of   the   Volscians   and  Aequi   by  a   Roman   Consul, 
says  that  the   booty  was  exposed   in  a  public   place,  for 
the  space  of  three   days,  that  every  one,  coming  to  rec- 
ognise what  belonged  to  him,  might  take  it  away.* 

*aThe  difficulty  of  recognising  things  of  this  nature,  and  the  endless 
disputes,  which  would  arise  from  the  prosecution  of  the  owner's  claims 
to  them,  have  been  deemed  motives  of  sufficient  weight  for  the  estab- 
lishment of  a  contrary  practice.  It  is  therefore  with  reason,  that  move- 
ables  or  booty  are  excepted  from  the  right  of  postliminium,  unless 
retaken  from  the  enemy  immediately  after  his  capture  of  them ;  in  which 
case  the  proprietor  neither  finds  a  difficulty  in  recognising  his  effects, 
nor  is  presumed  to  have  relinquished  them. » — Vattel  b.  iii.  ch.  xiv.sect.  209. 

(375) 


376  HUGO   GROTIUS 

But  if  any  one  has  become  possessed  of  such  a  thing 
by  purchase,  it  may  be  asked,  if  he  can  charge  the  per- 
son from  whom  it  was  originally  taken,  with  the  price 
which  he  has  paid  for  it  ?  According  to  the  principles 
before  *  laid  down,  he  certainly  may  charge  as  much  to 
the  person  losing  it,  as  the  repossession  of  a  thing,  which 
he  despaired  of  ever  recovering,  is  worth. 

The  history  of  Abraham  seems  applicable  to  this  sub- 
ject, when  he  returned  from  his  victory  over  the  five 
kings.  Being  a  man  of  noble  and  exalted  piety,  he  would 
appropriate  nothing  to  himself,  but  considering  the  things 
retaken,  as  his  own  right,  in  recompence  for  his  labour 
and  danger,  he  devoted  a  tenth  part  to  God,  after  de- 
ducting the  necessary  expences,  and  divided  a  certain 
portion  among  his  companions. 

IV.  As  THINGS  are  to  be  restored  to  their  original  own- 
ers, so  SUBJECTS  are  to  be  restored  to  their  former  lawful 
sovereigns. 

V.  The  period  also,  when   the  obligation  to  restitution 
expires,  is  often  a  subject  of  inquiry.     But  this  is  a  ques- 
tion, when  arising  between  subjects  of  the  same  kingdom, 
which    must    be    settled  by  the   municipal    laws   of    that 
country :  but  when  the  contending  parties  are  the  subjects 
of  foreign  powers,  the   matter  can  only  be  decided  upon 
a   conjecture   of  the   time   sufficient   to   constitute  a  pre- 
sumed dereliction  of  property. 

VI.  But  where  the  right  of  war  is  doubtful,  it  will  be 
safest  to  follow  the  conduct  of  Aratus  of   Sicyon,  in  ad- 
vising  the    new   possessors    in    some    measure    to  prefer 
taking   a  sum    of    money  in  lieu  of   the   possession,  and 
recommending   the   same  maxim  to  the  original  owners, 
to  prefer  a  sum  of  money,  if  they  could  obtain  it,  equiv- 
alent to  the  recovery  of  their  right. 

*B.  ii.  ch.  x.  sect.  9. 


CHAPTER   XVII. 
RESPECTING  THOSE  WHO  ARE  NEUTRAL  IN  WAR. 

Nothing  to  be  taken  belonging  to  neutrals,  but  under  circumstances  of 
extreme  necessity,  and  with  an  intention  to  pay  the  full  price  of 
it — Conduct  of  neutral  powers  towards  belligerents. 

I.  IT    MAY    appear    superfluous    to    speak    of    neutral 
powers,  against  whom  no  rights   of  war  can  exist.     But 
as    war,    under  the    plea   of    necessity,    occasions   many 
aggressions    to    be   committed    against    them,    especially 
when  bordering  upon   the  seat   of  its   operations,  it  may 
be   necessary   briefly  to   repeat  a  former  assertion,  that 
nothing  short  of  extreme   exigency   can   give  one   power 
a  right  over   what  belongs    to   another   no  way   involved 
in  the  war.     The  case  too  is  equally  clear  that  no  emer- 
gency can  justify  any  one  in  taking  and  applying  to  his 
own  use   what  the   owner  stands   in  equal   need  of  him- 
self.     But   even    where    the    emergency   can   be    plainly 
proved,  nothing  can  justify  us  in  taking  or  applying  the 
property  of  another  to  our  use,  beyond  the  IMMEDIATE  DE- 
MANDS  OF    THAT   emergency.     Where   the    CUSTODY    of  a 
thing,  by  securing  it,  is    sufficient    for  the    purpose,  the 
USE  and  CONSUMPTION  of  it  is  absolutely  unlawful.    If  the 
USE   of   it  is    necessary,   it    must   not  be    ABUSED:  and   if 
the  entire  ABUSE  of  it  be  requisite,  the  full  value  should 
be  paid. 

II.  Again,  according  to  what    was  said  in  a  preceding 
part  of  this  book,  it  is  the    duty   of   those,  who   profess 
neutrality  in  a  war  to  do  nothing  towards  increasing  the 
strength  of  a  party  maintaining  an  unjust   cause,  nor  to 
impede  the   measures  of  a  power  engaged   in  a  just  and 
righteous  cause.     But   in   doubtful   cases,  they   ought   to 
shew  themselves  impartial  to   both  sides,  and  to  give  no 
succour  to  besieged    places,  but   should  allow  the  troops 
of  each  to  march  through    the  country,  and   to  purchase 
forage,  and  other  supplies.    The  Corcyraeans,  in  Thucyd- 

(377) 


37«  HUGO   GROTIUS 

ides,  say  that  if  the  Athenians  intend  to  remain  neuter, 
they  ought  either  to  prohibit  the  Corinthians  from  en- 
listing men  in  the  territory  of  Attica,  or  to  give  THEM 
the  same  privilege.  The  Romans  objected  to  the  con- 
duct of  Philip  king  of  Macedon,  charging  him  with  a 
double  violation  of  treaties,  both  by  injuring  the  allies 
of  the  Roman  people,  and  assisting  the  enemy  with 
supplies  of  men  and  money. 


CHAPTER  XIX.* 
ON  GOOD  FAITH  BETWEEN  ENEMIES. 

Good  faith  due  to  enemies  of  every  description  —  Due  even  to 
pirates,  and  others  of  the  same  kind,  in  all  treaties  with  them  — 
A  promise  given  to  them,  binding,  when  not  extorted  by  fear 
—  Oaths  to  be  inviolably  observed  —  The  law  of  nations  does  not 
allow  fear  to  be  alleged  as  an  exception  to  the  above  rules  — 
Good  faith  to  be  observed  even  to  a  treacherous  enemy  —  This 
obligation  ceases,  where  one  of  the  parties  violates  his  engage- 
ments—  Or  refuses  a  just  compensation  —  Even  where  the  obliga- 
tion arose  from  a  different  contract  —  From  loss  occasioned  —  Or 
from  a  penalty  —  Application  of  these  principles  to  war. 

I.  IT  WAS  before  said  that  the  number  and  extent  of 
actions,  lawful  in  war,  may  be  considered  either  upon 
their  own  intrinsic  merits,  or  as  rising  out  of  some  ante- 
cedent engagement.  The  former  point  having  before 
been  fully  explained,  this  is  the  proper  place  for  discuss- 
ing the  latter,  which  comprehends  the  good  faith  of 
enemies  towards  each  other. 

Cicero,  in  his  fifth  book  on  the  bounds  of  good  and 
evil,  has  well  observed  that  every  one  must  approve  and 
commend  a  disposition  to  adhere  faithfully  to  our  engage- 
ments not  only  from  disinterested  motives,  but  in  some 
cases  even  in  opposition  to  our  own  interest.  And  Aug- 
ustine says  that  it  is  right  to  maintain  the  pledge  of  faith 
given  to  an  enemy,  for  under  the  character  of  enemies 
men  do  not  lose  their  right  to  the  fulfilment  of  a  promise, 
a  right  which  every  one  possessed  of  reason  is  capable  of. 
It  is  the  power  of  reason  and  speech  from  which  the 
obligation  of  promises  springs.  Nor  is  it  to  be  supposed 
that,  because  it  is  lawful  to  deceive  an  enemy  on  some 
occasions,  the  same  rule  will  authorise  a  violation  of 
faith  in  engagements.  For  the  obligation  to  speak  the 
truth  arises  from  causes  antecedent  in  their  existence  to 
any  state  of  warfare,  and  they  are  causes  which  a  state 
of  warfare  may  render  it  necessary  to  change  or  abridge. 
But  a  promise  confers  a  new  right  of  itself.  A  distinc- 
tion which  did  not  escape  the  notice  of  Aristotle,  who, 

•The  translation  proceeds  from  the  xviith  to  the  xixth  chapter  of 
the  original. — TRANSLATOR. 

(379) 


380  HUGO   GROTIUS 

in  speaking  of  truth,  says  that  he  does  not  consider 
truth  and  sincerity  in  engagements,  with  relation  to  jus- 
tice or  injustice,  but  as  belonging  to  another  class  of 
virtues. 

II.  As  to  engagements  with   pirates,  we  may  observe, 
that  Pompey  in  a  great   measure   concluded  the  disputes 
with  them   by  treaty,    sparing   their  lives,  and  allowing 
them  places  to  reside  in,  on  condition  of   their  abandon- 
ing their  former  way  of  life.     The  law  of  nations  indeed 
has   not   established    the    same    mode    of    communication 
with  them,  as  among  regular  enemies  in  just  and  lawful 
war:  but  still  the  very  circumstance   of  their  being  MEN, 
entitles  them  to  those  privileges  which  are  sanctioned  by 
the  law  of  nature,  among   which   the   observance   of   en- 
gagements is  one. 

III.  Let  us  consider  if  a  more  specious  argument  than 
Cicero's  may  not  be  devised  on  this  subject. —  In  the  first 
place  it  may  be  stated  that  atrocious  malefactors,  forming 
no  part  of  a  state,  may  be  punished  by   any   one    what- 
ever, according   to   the   law   of  nature.     For   those,  who 
may  be  punished  with  death,  may  upon  the  same  princi- 
ple be  deprived    of    their    property   and  all   their   rights. 
And    among    rights    may    be    enumerated    the    right    of 
requiring  a  fulfilment  of  promises  and  engagements:  the 
guilty  may  therefore   be   deprived  of   this  right   by  way 
of  penalty.     In  reply  to   which  it  may  be  said,  this  will 
certainly  be  the  case,  if  the   person   is  treated  with,  but 
not  as   a  malefactor:   for   the   very   act  of  treating  with 
him  shews  that  he  is  not   considered   any  longer  in  that 
light,  but  as  one  entitled  to  all  the  rights  of  treaty,  the 
criminal  part   of   his   character  not  being  taken  into  the 
account,  all  penalties  on  that  score  being,  as  it  were  re- 
mitted.     For  every  act  of  treaty  must  be  interpreted  so 
as  to  avoid  absurdity. 

IV.  An  objection  to   treating  with  pirates  upon  princi- 
ples of  good  faith  is   deduced   from    their   calling,  which 
is  to  extort  terms  by  fear.      Now   where   a  promise   has 
been  extorted,  the  promisor   is   released  from  his  engage- 
ment, as  having  unjustly   sustained  a  damage,  by  an  act 
repugnant    to   the   nature    of   human  liberty,   and  to  the 
nature  of  human  action,  which  ought  to  be  free. 

This,  it  must  be  admitted,  may  sometimes  happen,  but 
does  not  apply  to  all  promises  made  to  pirates.  For  to 
make  the  person,  to  whom  a  promise  has  been  given, 
liable  to  release  the  engagement,  the  promiser  himself 


THE   RIGHTS   OF   WAR   AND   PEACE  381 

must  have  been  forced  to  give  the  promise  under  im- 
pressions of  unjust  fear.  So  that  if  any  one  has  prom- 
ised a  ransom  in  order  to  redeem  a  friend  from  captivity, 
he  will  be  bound  by  his  promise.  For  in  this  case  there 
was  no  impression  of  fear,  as  he  came  voluntarily  to 
make  the  contract. 

V.  A  promise  too  made  through  the  compulsion  of  fear 
will  be  binding,  where  it  has  been  ratified  by  the  solemn 
sanction  of  an  oath:  for  in  that  case  it  is  not  only  one 
man  making  an  engagement  to  a  fellow  creature,  but 
binding  himself  to  God  by  the  most  solemn  appeal: 
against  which  neither  fear  nor  any  other  motive  can  form 
an  exception.  Yet  the  heir  of  a  promiser  is  not  bound 
by  any  such  obligation:  because  inheritances  pass  accord- 
ing to  the  rules  of  human  intercourse  established  at  the 
original  institution  of  property:  but  the  divine  right  to 
the  fulfilment  of  oaths,  as  such,  is  not  included  in  these. 
From  the  above  arguments  a  conclusion  may  be  deduced, 
that  if  any  one  violates  a  pledge  given  to  such  an  enemy 
either  upon  oath  or  without  oath,  he  will  not  on  that 
account  be  liable  to  punishment  among  other  nations, 
because  from  the  general  horror  which  piracy  excites, 
nations  have  thought  proper  to  pass  over  without  notice 
the  violation  of  rules  of  faith  towards  them. 

XL*  Solemn  war,  signifying  such  as  is  proclaimed 
and  begun  on  both  sides  by  authority  of  the  sovereign 
or  state,  among  its  many  other  legal  rights,  includes 
also  that  of  giving  validity  to  every  promise,  which  may 
be  conducive  to  its  termination,  so  that  if  either  party, 
through  an  ill-grounded  fear  of  further  calamities,  has, 
even  against  his  will,  made  promises  unfavourable,  or 
acceded  to  terms  disadvantageous  to  himself,  such  an 
engagement  will  be  binding.  For  the  law  of  nations 
allows  belligerent  powers  to  alarm  each  other,  if  possible, 
into  submission  upon  the  most  unequal  terms,  in  the 
same  manner,  as  it  gives  a  sanction  to  many  things  not 
strictly  equitable  according  to  natural  and  municipal  law. 
For  if  such  a  practice  had  not  been  established,  wars, 
which  are  so  frequent,  could  never  have  been  brought  to 
a  conclusion,  an  object  so  much  for  the  interest  of  man- 
kind. 

These  are  the  rights  of  war  which  Cicero  says  ought 
to  be  inviolably  preserved  with  an  enemy:  for  an  enemy 

•Sections  VI,  VII,  VIII,  IX  and  X  of  the  original  are  omitted  in  the 
translation.  (Translator.) 


382  HUGO   GROTIUS 

not  only  retains  his  natural  rights  in  war,  but  certain 
other  rights  originating  in  the  consent  of  nations.  Yet 
it  does  not  follow  from  hence  that  any  one,  who  has 
extorted  such  a  promise  in  unjust  war,  can,  consistently 
with  piety  and  the  duties  of  a  good  man,  retain  what  he 
has  so  received,  nor  can  he  compel  another  to  stand  to 
such  engagements,  whether  upon  oath,  or  not.  For  the 
natural  and  internal  injustice  of  such  a  promise  always 
remains  the  same,  nor  can  the  injustice  be  removed  or 
altered,  till  it  has  received  a  new  and  free  concurrence 
from  the  party,  by  whom  it  was  given. 

XII.  The  only  impressions  of  fear,  that  can  be  lawfully 
inspired  in  regular  war,  are  those  which  are  approved  of 
by  the  law  of  nations.     Thus   no   one    can   avail  himself 
of   a  promise,  extorted   from    an   ambassador   under   im- 
pressions of  fear  excited  by  the  seizing  of  his  person. 

XIII.  and  XIV.  There   are  two  cases,  in  which  a  per- 
son may  not   perform  his    engagement  or  promise,  with- 
out being  guilty  of  treachery:   and  those  are,  where   the 
conditions  have  not  been  fulfilled,  or  some  compensation 
has  been  made.     For  in  one  and  the  same  treaty  all  the 
clauses   seem    connected   with   each   other,  as  a  kind   of 
condition  expressing  the  intention  of  one   party  to   fulfil 
his  engagement,  if  the  other  shall  do  the  same.      There- 
fore Tullus,  in  replying  to  the  Albans  invokes  destruction 
upon  the  head  of  that  people  who  first  rejected  the  just 
claims   of   ambassadors    demanding    restitution,    wishing 
that   all    the    calamities   of   war   might   fall   upon   them. 
For,  says   Ulpian,  he   shall   no   longer  be  held  as  a  con- 
federate, who    has    renounced    a   treaty,   owing   to   some 
condition,  on  which  it  was  made,  not  being  fulfilled.    For 
which  reason,  wherever  it  is   intended   otherwise,   it    is 
usually  stated  in  express  terms,  that  the  violation  of  any 
particular  clause  shall  not  annul  the  whole   treaty. 

XV.  The  origin  of  compensation  was  explained  in  the 
second  book  of  this  treatise,*  where  it  was  said  to  be  the 
power  and  right  of  receiving  an  equivalent,  for  some 
thing  belonging  to  us,  which  is  in  the  hands  of  another, 
or  any  thing  due  to  us,  which  we  cannot  otherwise 
obtain:  and  much  more  then  have  we  a  right  on  the 
same  account  to  detain  any  thing  which  is  ALREADY  IN 
OUR  POWER,  whether  it  be  of  a  corporeal  or  an  incor- 
poreal kind.  So  that  we  are  not  obliged  to  perform  a 
promise,  if  it  be  no  more  than  equivalent  to  a  thing  of 

*B.  ii.  ch.  vii.  sect.  2. 


THE   RIGHTS   OF   WAR    AND   PEACE  383 

ours  which  the  other  party  detains.  Seneca,  in  his  sixth 
book  ON  BENEFITS,  says  that  a  creditor  often  becomes 
under  an  obligation  to  his  debtor,  if  he  takes  more  than 
an  equivalent  for  his  debt.  For  though  it  may  be 
granted  that  he  has  lent  money,  yet  if  by  such  a  loan  he 
has  obtained  the  possession  of  lands,  which  he  never 
bought,  he  changes  situations  with  his  debtor,  and  be- 
comes a  debtor  in  his  turn. 

XVI.  It  will  be   the   same,  if  one    of   the  contracting 
parties  owes  as  much,  or  more,  from  some  other  engage- 
ment: and  the  debt  cannot    otherwise    be   obtained,  than 
by  taking  advantage   of   the   present   contract,  though  it 
has  no  connection  with  the  former  debt.     But  in  a  LEGAL 
point  of  view,  all  actions  are   perfectly  distinct,  nor  can 
their  forms,    their   grounds,  or   their  substance   be    con- 
founded; but  certain  cases   are   confined   to  certain  laws, 
to  which  it   is   necessary   invariably    to    adhere:  one  law 
cannot  be  mixed  with  another,  but  every  one  in  the  prose- 
cution of  a  right  must  tread  upon   invariable  and  beaten 
ground.     But  the  law    of   nations    does   not  regard  such 
distinctions,  it  allows  us  to  transgress  them  where  there 
is  no  other  means  of  obtaining  our  right. 

XVII.  and  XVIII.  The  same  may   be    said  too,  where 
the  party   exacting  a   promise,  has    not    contracted    any 
debt   by   engagement,    but    has    done    an    injury    to   the 
promiser.     And  whatever  is  due   by  way  of   punishment 
may  be  balanced  against  a  promise. 

XIX.  If  while  a  law-suit  is  depending,  the  parties  enter 
into  an  agreement  of  any  kind,  either  to  pay  the  costs, 
or  to  make  good  other  damages,  they  cannot  avail  them- 
selves both  of  this  agreement,  and  claim  a  further  com- 
pensation for  the  original  matter  in  dispute.  In  the  same 
manner,  if  during  the  continuance  of  a  war  the  bellig- 
erents negotiate  for  a  conclusion  of  the  original  dispute, 
they  are  supposed  thereby  to  settle  every  cause  of  hos- 
tility, nor  can  they  any  further  avail  themselves  of  the 
rights  of  war,  so  as  to  enjoy  both  the  advantages  of 
them,  and  of  negotiation,  at  the  same  time.  For  if  this 
were  the  case,  no  treaties  could  ever  be  enforced  with 
certainty. 

It  may  be  asked,  of  what  nature  are  the  things  for 
which  a  promise  of  compensation  should  be  given  ?  In 
answer  to  which  it  may  be  observed,  that  such  a  prom- 
ise or  engagement  may  be  made  in  lieu  of  some  other 
obligation  incurred  during  the  course  of  a  war:  as  for 


384  HUGO   GROTIUS 

instance,  where  the  breach  of  a  truce  has  been  commit- 
ted, the  rights  of  an  ambassador  violated,  or  any  other 
action  done,  repugnant  to  the  principles  established  by 
the  law  of  nations  among  belligerent  powers. 

Still  it  must  be  observed  that  the  parties,  in  making 
compensation,  should  abstain  with  the  utmost  caution 
from  infringing  upon  the  rights  of  a  third  person,  es- 
pecially where  this  can  be  done  without  abandoning  the 
principles  of  the  law  of  nations,  which  makes  the  effects 
of  subjects  answerable  for  the  debts  of  the  state.  Besides 
it  is  the  mark  of  a  dignified  mind  to  adhere  to  engage- 
ments even  after  receiving  an  injury.  On  which  account 
the  Indian  sage  Jarchas  commended  that  king,  who  on 
sustaining  an  injury  from  a  neighbouring  and  confeder- 
ate power,  said  he  should  not  think  himself  released 
from  his  sworn  engagements,  which  were  solemn  acts, 
that  no  injustice  on  the  part  of  another  could  repeal. 

Almost  all  questions  relating  to  pledges  of  faith  given 
by  one  belligerent  power  to  another,  may  be  solved  upon 
the  principles  before  laid  down,  in  explaining  the  nature 
and  force  of  promises  in  general;  of  oaths,  treaties,  and 
conventions,  and  also  in  explaining  the  rights  of  the  ob- 
ligations of  kings,  and  the  method  of  interpreting  doubt- 
ful points.  But  in  order  to  remove  every  doubt  and 
difficulty,  perhaps  a  brief  discussion  of  the  most  usual 
and  practical  topics  of  negotiation  will  not  be  deemed 
tedious. 


CHAPTER    XX. 

ON    THE   PUBLIC    FAITH,    BY    WHICH   WAR    is   CONCLUDED; 
COMPRISING  TREATIES   OF    PEACE,    AND  THE  NA- 
TURE OF  ARBITRATION,  SURRENDER 
HOSTAGES,   PLEDGES. 

In  monarchies\the  power  of  making  peace  a  royal  prerogative  —  In 
aristocracies  and  democracies,  this  right  belongs  to  a  greater  number 
of  persons  —  In  what  manner  the  public  dominions  or  any  part  of 
them  may  be  alienated  —  How  far  a  peace  concluded  by  the  king 
binds  the  state,  or  his  successors  —  Property  of  individuals  ceded  for 
the  benefit  of  the  state  at  the  time  of  making  peace  —  Indemnity  to 
those  individuals  —  Losses  sustained  in  war — No  distinction  between 
things  acquired  according  to  the  law  of  nations  and  the  civil  law  — 
Transactions  of  the  sovereign  with  foreign  nations  deemed  valid 
from  motives  of  public  utility  —  General  rule  of  interpreting  the 
terms  of  peace  —  In  doubtful  cases  the  former  state  of  things  sup- 
posed to  be  continued  by  a  treaty  of  peace  —  Things  restored  to  the 
state  they  were  in  before  the  war  —  Independent  states,  voluntarily 
joining  one  of  the  belligerent  powers  cannot  claim  indemnity  of  the 
other  —  General  amnesty  —  Private  debts  subsisting  before  the  war 
not  included  therein — Restoration  of  captures  —  Rules  respecting 
such  restorations — Dubious  points  to  be  interpreted  to  the  prejudice 
of  the  party  dictating  the  terms  —  Distinction  between  new  causes  of 
war,  and  the  breach  of  a  peace  —  Rupture  by  any  act  contrary  to  the 
terms  of  peace  in  general  —  Infraction  of  a  treaty  by  allies  or  subjects 
— Violation  of  a  particular  treaty — Heads  of  treaties  —  Penalties 
annexed  —  Unavoidable  impediments  to  the  fulfilment  of  a  treaty  — 
Peace  continued  at  the  option  of  the  injured  party  —  Relations  of 
amity  —  How  far  receiving  subjects  and  exiles  may  be  considered  as 
a  breach  thereof — Victory — War  concluded  by  arbitration  —  Arbi- 
trators bound  by  rules  of  strict  justice  —  Absolute,  and  conditional 
surrender  —  Hostages  can  be  detained  for  no  other  than  the  express 
cause  for  which  they  were  given  —  Released  by  the  death  of  the 
party  for  whom  they  were  given  —  Obligation  of  pledges  —  Right  of 
redeeming  them  lost 

I.  Good  faith,  either  expressed  or  implied,  must  be  the 
foundation  of  every  treaty  between  hostile  powers.  And 
again  the  faith  that  is  expressed  is  either  of  a  public  or 
a  private  nature,  and  the  pledges  given  either  by  the  sov- 
ereign, or  inferior  authorities  in  states  constitute  the 
public  faith.  It  is,  by  such  pledges  given  on  the  part  of 
the  sovereign  power  alone,  that  peace  can  be  concluded, 
or  the  rights  of  war  enforced.  In  the  termination  of 

25  (3«5) 


386  HUGO   GROTIUS 

every  war,  either  the  principal,  or  accessory  causes  are  to 
be  considered.  Treaties  are  in  general  regarded  as  the 
principal  instrument,  by  which  wars  are  ended,  and  the 
mediation,  or  decision  of  a  third  person  or  power  is 
deemed  a  secondary  or  accessory  means. 

II.  The  person,  who  has  authority  to  begin  a  war,  is  the 
only  one  to  whom  the  right  of  making  peace  can  properly 
belong,   according  to  the  general  maxim,  that  every  one 
is  the  best  judge  in  the  management  of  his  own  affairs. 
From  hence  it  follows,  that  public  war  can  be  made  by 
the  sovereign  power  alone  on  each  side :  a  right  which  in 
every    kingly    government   is   very  justly  vested  in   the 
crown. 

III.  and  IV.  In  popular  or  aristocratic  forms  of  govern- 
ment, the  right  of  making  war,  or   concluding   peace,  is 
generally  lodged  in  some  public  council  or  body,  where  a' 
majority   of   voices    may    form   treaties,    conventions,    or 
resolutions,  which  will  be   binding   upon   the   dissentient 
part  of  such  council.     And  all  who  are  bound  by  a  peace, 
whether  approving  it  or  not  are  entitled  to  its  benefits. 

V.  In  examining  those  objects,  which  form  the  most 
material  part  of  treaties,  we  may  observe,  that  kingdoms 
are  not  so  much  a  patrimony,  which  may  be  alienated  at 
pleasure,  as  a  trust,  placed  in  the  hands  of  the  sovereign 
for  the  benefit  of  his  people.  Indeed  kings  themselves  are 
aware  of  this,  even  before  the  crown  descends  upon  their 
heads,  and  they  receive  it  upon  condition  of  adhering  to 
such  sacred  obligations. 

Nor  can  such  alienations  ever  be  made,  so  as  to  be 
attended  with  consequences  like  those  of  private  contracts, 
or  to  render  the  goods  and  effects  of  subjects  answerable 
for  such  engagements.  For  if  that  were  the  case,  the 
fundamental  laws  of  the  kingdom,  prohibiting  such  alien- 
ations, would  be  of  no  effect. 

To  render  the  alienation  of  the  whole  public  dominion 
valid,  the  consent  of  the  constituted  authorities  of  the 
state  is  requisite.  And  indeed  to  confirm  the  transfer  of 
any  particular  portion,  the  consent  of  the  whole  body  as 
well  as  of  that  particular  member  will  be  necessary:  for 
otherwise  such  alienation  would  be  like  the  violent  sep- 
aration of  a  limb  from  the  natural  body. 

A  whole  people  may  in  a  case  of  extreme  necessity 
transfer  themselves  to  the  dominion  of  another,  a  right 
which  undoubtedly  was  reserved  at  the  original  formation 
of  society. 


THE   RIGHTS   OF  WAR   AND   PEACE  387 

Neither  is  there  any  thing  to  prevent  a  king  from  alien- 
ating his  patrimonial  and  private  possessions.  Yet  there 
may  be  parts  of  the  royal  dominion,  which  the  sovereign 
cannot  alienate  from  the  crown,  especially,  if  he  has  re- 
ceived it  upon  condition  of  making  no  personal  appro- 
priation of  any  thing  belonging  thereto. 

There  are  two  ways  in  which  the  possessions  of  the 
crown  may  become  the  patrimony  of  the  king,  either  as 
separable  or  inseparable  parts  of  the  kingdom.  In  the 
latter  case  they  can  only  be  transferred  with  the  king- 
dom itself,  but  in  the  former,  they  may  be  alienated  by 
themselves.  And  where  the  crown  is  not  patrimonial 
and  hereditary,  the  restrictions  upon  the  sovereign  in  this 
respect  are  much  greater. 

VI.  A  nation  and  a  king's  successors  are  bound  by  his 
engagements,  in  proportion  to  the  power,    which   he   de- 
rives from  the  constitution,  of  making  such  engagements. 
For  though  this  power  may  not  be  absolutely  unlimited, 
yet  it  ought  not  to  be  clogged  with   unnecessary  restric- 
tions.    It  should  be  such  as  may  enable  him  to  exercise 
his  discretion  and  judgment  on  proper  occasions  for  the 
benefit  of  his  people. 

The  case  will  be  different,  where  a  king's  power  over 
his  subjects  is  like  that  of  a  master  over  his  household, 
more  than  of  a  sovereign  over  his  state,  as  where  he  has 
entirely  subjugated  a  people,  or  where  his  controul  over 
their  property  is  absolute.  Thus  Pharaoh  purchased  all 
the  land  in  Egypt,  and  others  have  admitted  strangers 
into  their  territories  allowing  them  to  hold  lands  upon 
such  conditions.  For  here,  there  is  another  right  in  addi- 
tion to  that  of  a  sovereign,  and  it  is  a  right,  which  sover- 
eignty alone  without  conquest  could  never  have  conferred. 

VII.  The  right  of   sovereigns  to  dispose  of   the  effects 
of  individuals,  in  order  to  make  peace,  is  often  a  disputed 
point,  nor  can  they  exercise  this  right  over  the  property 
of  subjects  in  any  other  manner  than  as  sovereigns.* 

The  property  of  subjects  is  so  far  under   the   eminent 

* (( The  necessity  of  making  peace  authorises  the  Sovereign  to  dispose 
of  the  property  of  individuals ;  and  the  eminent  dominion  gives  him  a 
right  to  do  it.  Every  thing  in  the  political  society  ought  to  tend  to  the 
good  of  the  community ;  and  since  even  the  powers  of  the  citizens  are 
subject  to  this  rule,  their  property  cannot  be  excepted.  The  state  could 
not  subsist,  or  constantly  administer  the  public  affairs  in  the  most  ad- 
vantageous manner,  if  it  had  not  a  power  to  dispose  occasionally  of  all 
kinds  of  property.® — Vattel,  b.  iv.  ch.  ii.  sect.  12.  ibid.  b.  i.  ch.  xx. 
sect  244, 


388  HUGO   GROTIUS 

controul  of  the  state,  that  the  state  or  the  sovereign  who 
represents  it,  can  use  that  property,  or  destroy  it,  or 
alienate  it,  NOT  ONLY  IN  CASES  OF  EXTREME  NECESSITY,  which 
sometimes  allow  individuals  the  liberty  of  infringing  upon 
the  property  of  others,  but  on  all  OCCASIONS,  where  the 
public  good  is  concerned,  to  which  the  original  framers 
of  society  intended  that  private  interests  should  give  way. 
But  when  that  is  the  case,  it  is  to  be  observed,  the  state 
is  bound  to  repair  the  losses  of  individuals,  at  the  public 
expence,  in  aid  of  which  the  sufferers  have  contributed 
their  due  proportion.  Nor  will  the  state,  though  unable 
to  repair  the  losses  for  the  present,  be  finally  released 
from  the  debt,  but  whenever  she  possesses  the  means  of 
repairing  the  damages,  the  dormant  claim  and  obligation 
will  be  revived. 

VIII.  There  must  be  some  hesitation  in  admitting  the 
opinion  of  Ferdinand  Vasquez,  who  maintains  that  the 
state  is  not  bound  to  repair  the  losses,  which  are  occa- 
sioned to  individuals  in  the  course  of  war,  as  those  are 
accidents  permitted  by  the  rights  of  war. 

For  those  rights  regard  the  relation  of  foreign  states 
and  enemies  to  each  other,  but  bear  no  reference  to  the 
disputes  of  subjects  among  themselves,  who,  being  united 
in  the  same  cause,  ought  to  share  the  common  losses, 
which  happen  to  them  in  supporting  the  privileges  of 
their  society.  It  is  a  rule  likewise  established  by  the 
civil  law,  that  no  action  can  be  brought  against  the  state 
for  the  losses  sustained  in  war,  as  every  one  is  thereby 
induced  to  defend  his  own  property  with  more  earnest- 
ness and  spirit.* 

*<(Some  damages  are  done  deliberately  and  byway  of  precaution, 
as  when  a  field,  a  house,  or  a  garden,  belonging  to  a  private  person, 
is  taken  for  the  purpose  of  erecting  on  the  spot  a  tower,  rampart,  or 
any  other  piece  of  fortification, — or  when  his  standing  corn,  or  his 
storehouses  are  destroyed,  to  prevent  their  being  of  use  to  the  enemy. 
Such  damages  are  to  be  made  good  to  the  individual,  who  should  bear 
only  his  quota  of  the  loss.  But  there  are  other  damages,  caused  by 
inevitable  necessity,  as  for  instance,  the  destruction  caused  by  the 
artillery  in  retaking  a  town  from  the  enemy.  These  are  merely  acci- 
dents, they  are  misfortunes,  which  chance  deals  out  to  the  proprietors 
on  whom  they  happen  to  fall.  The  sovereign  ought  indeed  to  shew 
an  equitable  regard  for  the  sufferers,  if  the  situation  of  his  affairs 
will  admit  of  it:  but  no  action  lies  against  the  state  for  misfortunes 
of  this  nature, — for  losses,  which  she  has  occasioned,  not  wilfully,  but 
through  necessity  and  mere  accident,  in  the  exertion  of  her  rights. 
The  same  may  be  said  of  damages  caused  by  the  enemy. M  Vat  b. 
iii.  ch.  zv.  sect  332. 


THE   RIGHTS  OF  WAR  AND   PEACE  389 

IX.  Some  make  a  distinction  between  the  property  which 
subjects  are  entitled  to  from  the  law  of  nations  and  that 
which    they  possess    by    the    authority  of   the    civil    law, 
allowing  the   king   a  more   extensive  controul  over   the 
latter,  even   to  the   power  of  taking  it  without  cause  or 
compensation,  which  is  not  the  case  with  property  of  the 
former  kind.     But  this  is  an    improper  distinction.     For 
whatever  may  be   the   origin   of  property,    it  is   always 
attended  with    peculiar    effects   according   to   the    law  of 
nature:    so  that   it  cannot   be    taken   away  for  any  other 
reasons   than    those  inherent   in   the  nature  of   property 
itself,  or  derived  from  some  act  of  the  owners. 

X.  The  prohibition  respecting  the  property  of  individ- 
uals being  given   up,  except  for  some  public  advantage, 
is  a  matter  resting  entirely  between  a  sovereign  and  his 
subjects,  and  a  compensation   for  losses  is   an  affair  be- 
tween the  state  and  individuals.      But  in  all  transactions 
between  a  king   and   foreigners,  the   act  of  the   king   is 
sufficient  to  give  them  NATIONAL  validity,  not  only  out  of 
respect  to  his  personal  dignity,  but  according  to  the  law 
of  nations,  which  renders  the  effects  of  subjects  respon- 
sible for  the  acts  of  the  sovereign. 

XL  In  interpreting  treaties  of  peace,  favourable  cir- 
cumstances are  always  to  be  taken  in  their  utmost  lati- 
tude, and  unfavourable  circumstances  to  be  limited  as 
strictly  as  possible.* 

Regarding  purely  the  law  of  nature,  the  most  favour- 
able construction  is  that,  whereby  every  one  is  restored 
to  his  own  property  and  possessions.  Therefore  where 
the  articles  of  a  treaty  are  ambiguous,  the  construction 
should  go  so  far,  as  to  grant  the  party,  who  has  evi- 
dently justice  on  his  side,  the  object  for  which  he  went 
to  war,  and  likewise  indemnity  for  the  losses  which  he 
has  sustained. 

But  it  is  not  allowable  that  either  party  should  gain 
more  than  an  indemnity,  or  demand  any  thing  by  way  of 
punishment,  which  is  of  an  odious  nature. 

As  in  making  peace,  it  scarcely  ever  happens  that 
either  party  will  acknowledge  the  injustice  of  his  cause, 
or  of  his  claims,  such  a  construction  must  be  given, 
as  will  equalize  the  pretensions  of  each  side,  which 
may  be  accomplished,  either  by  restoring  the  disputed 
possessions  to  their  former  situation,  or  by  leaving  them 
in  the  state,  to  which  the  war  has  reduced  them. 

*See  b.  ii.  ch.  xv.  sect  12. 


390  HUGO  GROTIUS 

XII.  Of  these   two   methods,   in    a   doubtful   case,   the 
latter  is  preferred,    as  being  the   more   easily  adjusted, 
and   occasioning   no   further    change.       From    hence    the 
right  of  postliminium   belongs    to   such  prisoners,  as  are 
expressly  included  in  the   treaty.       Neither   are  deserters 
to  be  given  up,  unless  it  be  so  agreed.     For  by  the  laws 
of  war  any  power   is   allowed   to   receive  deserters,  and 
even  to  enlist  them  in  his  own  army. 

By  such  agreement  other  things  remain  in  the  hands 
of  the  possessors,  by  which  is  not  meant  a  civil,  but  a 
natural  possession:  for  in  war  BARE  POSSESSION  is  suffi- 
cient, nor  is  any  other  kind  looked  for.  And  lands  are 
said  to  be  so  possessed,  when  inclosed  or  defended  by 
fortifications,  for  a  temporary  occupation  by  an  encamp- 
ment is  not  regarded  in  this  case.  Hence  Demosthenes 
in  his  speech  for  Ctesiphon,  says  that  Philip  was  anxious 
to  make  himself  master  of  all  the  places  he  could  seize, 
as  he  knew  that  upon  the  conclusion  of  a  peace,  he  should 
retain  them. 

Incorporeal  rights  cannot  be  held  but  by  the  occupa- 
tion of  the  things  with  which  they  are  connected;  as  for 
instance,  the  services  of  lands,  or  through  means  of  the 
persons,  to  whom  they  belong:  but  the  holders  of  such 
rights  lose  them,  when  an  enemy  has  become  master  of 
the  country. 

XIII.  In  that  other  mode  of  treaty,  whereby  possession, 
that  has  been  disturbed  in  the  course  of  a  war,  is  restored, 
it  is  proper  to  observe   that  the  last  possession,  immedi- 
ately before  the  war  began,  is  that,  which  is  always  meant, 
so  that  the  individuals   then   unjustly  ejected,  may  have 
recourse  to  law,  either  to   obtain   possession  by  a  provi- 
sional decree,  or  to  make  good  their  claim. 

XIV.  If  an  independent  people  VOLUNTARILY  and  SPON- 
TANEOUSLY place  themselves  under  the  controul  and  pro- 
tection of  one   of  the   belligerent   powers,    such  a  people 
cannot  be  included   among  those   entitled  to  restitution, 
which  only  belongs  to  those  who  have  suffered  losses  by 
violence,    through    fear,  or  any  lawful  stratagem  of  war. 
Thus    when   peace    was  made   among  the  Grecian  states, 
the  Thebans  retained  Plataea,  observing  that  they  neither 
owed   their   possession   of  it  to   violence,    nor   treachery, 
but  to  the  free  surrender  of  those,  to  whom  it  belonged. 

XV.  Unless  there  is  an  express  stipulation  to  the  con- 
trary, it  is  understood  that,  in  all  treaties  of  peace,  there 
is  an  implied  assent  that  no  actions  are  to  be  brought  for 


THE   RIGHTS   OF   WAR  AND   PEACE  391 

losses  occasioned  by  the  accidental  calamities  of  war, 
either  to  states  or  individuals.  For  those  are  natural 
consequences  of  a  state  of  hostilities:  and  it  is  supposed 
that  in  doubtful  cases,  no  belligerent  would  consent  to 
be  convicted  of  injustice. 

XVI.  The  debts,  owing  to  individuals,  at  the  beginning 
of  a  war,  are  not  to  be  thought  thereby  discharged.     For 
they  are  not   things   acquired   by   the   laws  of   war:  for 
war  only  prevents  the    claim  to   them  from  being  prose- 
cuted, but  by  no  means  releases  the  obligation.     So  that 
when  the  impediment  of  war  is  removed,  such  debts  re- 
tain their  original  force.     For  though  it  ought  not  to  be 
presumed  that   any   one   should   easily   be  deprived  of  a 
right  subsisting  before  the  war,  yet  this  is   to  be  under- 
stood of  the  rights  arising  out  of  the  foundation  of  prop- 
erty, whereby  a   community   and   equality   of  goods  was 
abolished.      For   states    and    governments,    says    Cicero, 
were   originally    and   principally   designed  to  preserve  to 
every  one  the  possession  of  his  own  property. 

XVII.  The  right  to  claim  lands  or  goods  of  any  kind, 
by  way   of   PUNISHMENT,  is   not   of   equal   force    with  the 
above    rules.      For   in    transactions  and  treaties  of  that 
kind  between  kings   and   sovereign   states,  all   claims  of 
that   kind   seem   and    indeed    ought    to   be    relinquished, 
otherwise  peace  would  be  no  peace,  if  the  old  and  original 
causes  of  the  war  were  allowed  to  remain  and  be  revived. 
And  the  most  latent  and  remote   causes  are   supposed  to 
be  included  in    the  most    GENERAL    TERMS,  in   treaties    of 
peace,  whereby  they  are  sunk  in  oblivion. 

XVIII.  The    rights   of   individuals  to  penalties  are  not 
supposed  to  be  abandoned,  resting  entirely  upon  different 
grounds:  because  they  may  be  decided  by  legal  tribunals 
without   appealing   to   the    sword.      Yet   as  our  rights  of 
this  sort  are  not  of  the  same  kind  with  those  of  absolute 
property,  and  as  penalties  have  always  something  odious 
in    their    nature,    any    faint    verbal    conjecture    will    be 
thought  a  sufficient  presumption  of  their  being  remitted. 

XIX.  The    objection    made    against    taking    away    any 
rights,  that  existed  before  the  war,  applies  chiefly  to  the 
rights  of  INDIVIDUALS.     For  where  the    words  of  a  treaty 
supply  any  probable  conjecture,  it  is  most  natural  to  sup- 
pose that    KINGS    and    NATIONS   have    more   readily  relin- 
quished certain  rights,  especially  in  matters,  where  those 
rights   are   not   clearly   and   fully   ascertained.     So   that, 
giving  the  most  favourable  construction  to  their  conduct, 


392  HUGO   GROTIUS 

they  are  supposed  to  have  been  animated  with  the  noble 
desire  of  rooting  up  and  destroying  all  the  seeds  of  war. 

XX.  All  captures,  made  after  a  treaty  is  finished,  must 
evidently  be  restored.     For  the  treaty  puts  an  end  to  all 
the  rights  of  war. 

XXI.  But    in    treaties    relating    to  the   restoration    of 
things    taken    in    war,    a    more    extensive    interpretation 
must  be  given,  where  the  advantages    are    mutual     than 
where  they  incline  only  to  one  side.* 

In  the  next  place  all  the  parts  of  a  treaty  relating  to 
persons  are  to  be  interpreted  more  favourably  than  those 
relating  to  things:  and  among  those  relating  to  things, 
priority  is  given  to  lands  before  moveable  effects,  and 
also  among  these,  such  as  are  in  the  hands  of  the  state 
are  held  in  more  consideration  than  the  possessions  of 
individuals.  And  again,  among  things  in  the  possession 
of  individuals,  those  are  more  favoured  which  are  held 
under  a  beneficial  title,  than  those  which  are  loaded  with 
incumbrances,  as  things  held  by  money  payments,  or 
by  dower. 

XXII.  The  person,  to  whom  any  thing  is   ceded  by  a 
treaty  of  peace,  is  entitled  to  the  produce   and   fruits   of 
it,  from  the  time  of  such  cession,  and  not  farther  back: 
a  point  maintained  by  Augustus  Caesar  in  opposition   to 
Sextus  Pompey,  who,  upon  Peloponnesus  being  ceded  to 
him,  claimed  also  the  tributes  and   revenues,    that  were 
due  for  former  years. 

XXIII.  The  names  of  countries  are  to  be  taken  accord- 
ing to  the  usage  of  the  present  time,    not   so   much   ac- 
cording to  the  popular  acceptation,  as  to  that  of  men  of 
science,  by  whom  those  subjects  are  generally  treated  of. 

XXIV.  These  rules  also  are  of  frequent  use,  whenever 
there    is   a  reference  to  an  antecedent,   or  to  an    ancient 
treaty.     For  in  that  case  the  qualities  and   conditions   of 
the  latter  treaty  are  considered  as    a  repetition  of  those 
expressed  in  the  former.  —  And  the  person  contracting  is 
to  be  considered  as  having  really  performed  his   part  of 
the   engagement,    which  he   certainly    would   have   done, 
had  he  not  been  prevented  by  the  party  with  whom  he 
is  engaged  in  dispute. 

* <(  Because  then  the  condition  of  the  contracting  parties  being  unequal, 
there  is  great  reason  to  believe,  that  he,  to  whose  disadvantage  the  in- 
equality is,  has  pretended  to  engage  himself  as  little  as  possible:  and 
it  was  the  other's  business  who  was  to  have  the  benefit  of  it,  to  have 
the  thing  explained  in  as  clear  a  manner  as  possible.*  —  Barbeyrao. 


THE   RIGHTS   OF  WAR   AND   PEACE  393 

XXV.  What  some  allege  in  excuse  for  a  short  delay  in 
the  execution   of  a  treaty  is   not  to  be   admitted  as  true, 
except    some    unforeseen    necessity    has    occasioned    the 
impediment.     For   though   some  of   the    canon-laws   may 
favour    such    a   plea,  that    is  not   surprising,  considering 
they  are  framed  solely  with  the  view  of  promoting  charity 
among  Christians.     But  in  this    question    relating  to  the 
interpretation  of  treaties,  it  is  not  so  much  our  business 
to  lay  down  what  is  best  and  properest  for  every  one  to 
do,  nor  even  to  state  what  religion  and  piety  require,  as 
to  consider  what   every  one   may  be  compelled   by  legal 
authority  to  do. 

XXVI.  In  doubtful  matters  it  is  usual  for  an  interpre- 
tation to  be  given  more  prejudicial  to  the  party  who  has 
dictated  the  terms,  than  to  the  other,  because  in  general 
he  is  the  more  powerful :  in  the  same  manner,  in  explain- 
ing the    terms  of   a  bargain,    a  construction  is   generally 
given  against  the  seller:  as  he  may  blame  himself  for  not 
having  spoken    more    clearly,    and  openly.     Whereas  the 
other,  comprehending   the  terms  in  more    meanings  than 
one,  might  fairly  select  that    most  favourable  to  himself. 

XXVII.  It  is  a  matter  of  frequent  dispute  what  consti- 
tutes the  breach    of   a   peace.     For  it    is  not   the    same 
thing  to  break  a  peace,  as   to   furnish  new  grounds    and 
causes  of  war.     There  is  a  great  difference  between  these 
things,  both  as  to  the  penalty  incurred  by  the  aggressor, 
and  as  to  the  aggrieved  party    being,    in   other    respects, 
released  from  his  engagements. 

There  are  three  ways,  in  which  a  peace  may  be  broken, 
—  either  by  doing  something  contrary  to  the  very  essence 
of  ALL  peace, —  or  something  in  violation  of  the  EXPRESS 
terms  of  a  PARTICULAR  peace, —  or  something  contrary  to 
the  EFFECTS,  which  are  intended  to  arise  from  every  peace. 

XXVIII.  A  thing  is  done  contrary  to  the  very  essence 
of  all   peace,    when    hostile    aggressions    are    committed 
without  any  new  grounds  of  war.     But  where  any  specious 
pretext  can  be  assigned   for  taking   arms,  it  is    better  it 
should  be  supposed   purely   an    act   of   injustice,  than  an 
act  of  injustice    accompanied   with   perfidy.     It  is  hardly 
necessary  to  quote    the  words  of    Thucydides,  who   says, 
*it  is  not  the  party,  who   repels   force  by  arms,  but  the 
power  who  first  makes  the  attack,  that  violates  a  peace. w 

Having  laid  down  these  rules,  it  remains  to  be  consid- 
ered, who  are  the  AGGRESSORS,  and  who  are  the  AGGRIEVED 
PERSONS,  in  the  breaking  of  a  peace. 


394  HUGO    GROTIUS 

XXIX.  There    are   some,  who   think    that    a   peace  is 
broken,  when  even  those,  who  have   been  allies   do  any 
of  these  things.     Nor  indeed  can  it  be  denied,  that  such 
an  agreement  MAY  be  made,  for  one  ally  to  become  liable 
to    punishment    for    the    actions    of    another,   .and    for    a 
peace   to   be   deemed   ratified   and   permanent   only  upon 
conditions,  partly  arbitrary,  and  partly  casual. 

But  it  is  hardly  credible,  unless  there  is  the  clearest 
evidence  of  it,  that  peace  is  ever  concluded  upon  such 
terms.  For  it  is  contrary  to  all  rule,  and  repugnant  to 
the  common  wishes  of  those,  who  make  peace.  There- 
fore those,  who  have  committed  hostile  aggressions,  with- 
out the  assistance  of  others,  will  be  deemed  breakers  of 
the  peace,  against  whom  alone  the  injured  party  will 
have  a  right  to  take  arms. 

XXX.  If   subjects  have    committed  any  act  of  hostility 
without  authority  and  commission  from  the  state,  it  will 
form  a  proper  subject  of  inquiry,  whether  the   state  can 
be  judged  responsible  for  the  acts  of  individuals:  to  con- 
stitute  which   responsibility,  it   is   evident   that  a  knowl- 
edge of  the  fact,  power  to  punish  it,  and  having  neglected 
to  do  so,  are  requisite. 

A  formal  notice  given  to  the  sovereign  of  the  offend- 
ing subjects  is  supposed  to  amount  to  a  knowledge  of 
the  fact,  and  it  is  presumed  that  every  sovereign  is  able 
to  controul  and  punish  his  own  subjects,  unless  there  be 
some  defect  in  his  authority:  and  a  lapse  of  time,  beyond 
what  is  usually  taken  for  the  punishment  of  civil  offences 
in  every  country,  may  be  construed  into  wilful  neg- 
lect. And  such  neglect  amounts  to  a  sanction  of  the 
offence. 

XXXI.  It   is    likewise    frequently    made    a    subject    of 
inquiry,  whether  a  state  is  answerable  for  the  conduct  of 
any  of  her  people,  who  do  not  take  arms  by  her  authority, 
but  serve  in  the  armies  of  some  other  power  engaged  in 
war.      The    Cerites,  in    Livy,  clear  themselves  upon   this 
principle,  that  it  was  not  by  their  authority  their  people 
bore  arms.     And  it  is  a  well-founded  opinion  that  no  such 
permission  ought  to  be  deemed  as  given,  unless  it  appear 
from  probable  reasons  that  it   was  intended  it  should  be 
granted :  a  thing  sometimes  done,  according  to  the  example 
of  the   ancient  Aetolians,  who   thought  they   had  a  right 
to  deprive  every  plunderer  of  his  spoils.     A  custom  the 
force  of  which  Polybius  expresses  in  the  following  words, 
"when  other  powers,  friends  and  allies  of  the  Aetolians, 


THE    RIGHTS  OF   WAR   AND   PEACE  395 

are  at  war  with  each  other,  the  Aetolians  may  neverthe- 
less serve  in  the  armies  on  either  side,  destroying  and 
spoiling  their  respective  countries.  * 

XXXII.  Again,  a  peace    ought    to   be   deemed  broken, 
not  only  by  any  act  of  violence  done  to  the  body  politic 
itself,  but  to  any   of  the   subjects,  without  new  grounds 
of  war.     For  peace  is  made    with  a  view  to  the  security 
of  every  individual  subject :  as  the  state  in  making  peace 
acts  for  the  whole,  and  for  all  its  parts. 

Indeed  even  if  new  grounds  of  war  should  arise,  every 
one  may,  during  the  continuance  of  peace,  defend  him- 
self and  his  property.  For  it  is  a  natural  right  to  repel 
force  by  force:  a  right  which  it  cannot  easily  be  sup- 
posed that  those,  who  are  upon  a  footing  of  equality  have 
ever  renounced. 

But  to  practise  revenge,  or  use  violence  in  recovering 
things  taken  away  will  not  be  lawful,  except  where  jus- 
tice is  denied.  Justice  may  admit  of  some  delay:  but 
the  other  method  demands  prompt  execution,  and  there- 
fore should  not  be  undertaken  but  in  extreme  emergency. 
But  if  the  subjects  of  any  country  persist  in  a  course  of 
uniform  crime,  and  aggression,  repugnant  to  all  natural 
and  civil  law,  in  defiance  of  the  authority  of  their  own 
government,  so  that  the  hand  of  justice  cannot  reach 
them,  it  will  be  lawful  for  any  one  to  deprive  them  of 
their  spoils,  and  to  exercise  upon  them  the  same  rigour, 
as  if  they  were  delivered  up  to  punishment.  But  to  at- 
tack other  innocent  persons  on  that  account  is  a  direct 
violation  of  peace. 

XXXIII.  Any  act  of  violence  also  offered  to  allies,  con- 
stitutes a  breach   of   the    peace,  but  they    must  be  such 
allies  as  are  comprehended  in  the  treaty. 

The  same  rule  holds  good,  even  if  the  allies  themselves 
have  not  made  the  treaty,  but  others  have  done  so  on 
their  behalf :  since  it  is  evident  that  those  allies  regarded 
the  peace  as  ratified  and  valid.  For  they  are  looked  upon 
as  enemies,  till  it  is  certain  they  have  consented  to  the 
ratification. 

Other  allies,  or  connections,  who  are  neither  subjects 
nor  named  in  the  treaty  of  peace,  form  a  distinct  class, 
to  whom  any  violence  done  cannot  be  construed  into  an 
act  of  breaking  the  peace.  Yet  it  does  not  follow 
that  war  may  not  be  undertaken  on  such  an  account, 
but  then  it  will  be  a  war  resting  entirely  upon  new  grounds. 

XXXIV.  A  peace  is   broken   by  doing   any  thing   con- 


396  HUGO   GROTIUS 

trary  to  the  express  terms  of  it;  and  by  this  is  likewise 
meant  the  non-performance  of  engagements. 

XXXV.  Nor  can  we  admit  of  any  distinction   between 
articles  of  greater  or  minor  importance. 

For  ALL  the  articles  of  a  treaty  are  of  sufficient  mag- 
nitude to  require  observance,  though  Christian  charity 
may  overlook  the  breach  of  them  upon  due  acknowledge- 
ment. But  to  provide  greater  security  for  the  continu- 
ance of  a  peace,  proper  clauses  will  be  annexed  to  the  minor 
articles,  stating  that  any  thing  done  against  them  shall  not 
be  deemed  an  infraction  of  the  treaty:  or  that  mediation 
shall  be  adopted  in  preference  to  having  recourse  to  arms. 

XXXVI.  This    seems    to    have    been    plainly   done    in 
treaties,    where    any    special    penalty    was    annexed.     A 
treaty  indeed  may  be  made  upon  terms  allowing  the  in- 
jured party  his  option  either  of  enacting  the  penalty,  or 
receding   from  his   engagement:   but  the   nature   of    the 
business  rather  requires  the  method  of  mediation.     It  is 
evident  and  proved  from  the  authority  of  history,  that  one 
of    the   parties,    who   has    not   fulfilled   his    engagement, 
owing    to   the  neglect   of   the   other   to   do  so,  is  by  no 
means    guilty   of   breaking   the   peace:  as  his   obligation 
was  only  conditional. 

XXXVII.  If  there  is  any  unavoidable  necessity  to  pre- 
vent one  party  from  fulfilling  his  engagement,  as  for  in- 
stance, if  a  thing  has  been  destroyed,  or  carried   off,  by 
which    the    restoration    of   it    has    become    impossible,    a 
peace  shall  not  thereby  be  deemed   broken,  the   continu- 
ance of  it  not   depending   upon    CASUAL   conditions.     But 
the   other   party   may   have   his   option,  either   to  prefer 
waiting,  if  there  is  any  reason  to  hope  that  the   engage- 
ment may  be  fulfilled   at   some   future   period,  or  to  re- 
ceive an  equivalent,  or  to  be  released,  on   his   side  from 
some  corresponding  article  of  the  treaty. 

XXXVIII.  It  is  honourable,  and  laudable   to  maintain 
a  peace,  even   after  it  has   been   violated  by  the   other 
party:  as  Scipio  did,  after  the  many  treacherous  acts   of 
the  Carthaginians.     For  no  one  can  release  himself  from 
an    obligation    by   acting   contrary   to   his    engagements. 
And    though    it   may  be   further  said  that   the  peace   is 
broken  by  such  an  act,  yet  the  breach  ought  to  be  taken 
in  favour  of  the  innocent  party,  if  he   thinks  proper  to 
avail  himself  of  it. 

XXXIX.  Lastly,  a  peace  is  broken  by  the  violation  of 
any  special  and  express  clause  in  the  treaty. 


THE   RIGHTS   OF   WAR   AND   PEACE  397 

XL.  In  the  same  manner,  those  powers,  who  commit 
unfriendly  acts,  are  guilty  of  breaking  that  peace,  which 
was  made  solely  upon  condition  of  amicable  relations 
being  preserved.  For  what,  in  other  cases,  the  duties  of 
friendship  alone  would  require,  must  here  be  performed 
by  the  law  of  treaty. 

And  it  is  to  treaties  of  this  kind  that  many  points  may 
be  referred,  which  are  discussed  by  legal  writers,  relat- 
ing to  injuries  done  without  force  of  arms,  and  to  the 
offences  of  insults.  According  to  this  principle,  Tully 
has  observed,  that  any  offence  committed  after  a  recon- 
ciliation is  not  to  be  imputed  to  neglect,  but  to  wilful 
violation,  not  to  imprudence,  but  to  treachery. 

But  here  it  is  necessary,  if  possible,  to  exclude  from  the 
account  every  charge  of  an  odious  kind.  So  that  an 
injury  done  to  a  relation  or  subject  of  the  person, 
with  whom  a  treaty  of  peace  has  been  made,  is  not 
to  be  deemed  the  same,  as  one  done  to  himself,  unless 
there  are  evident  proofs  that,  through  them,  an  attack 
upon  him  was  intended.  And  an  invasion  of  another's 
rights  is  often  to  be  ascribed  to  new  motives  of  ra- 
pacity, rather  than  to  those  of  treachery. 

Atrocious  menaces,  without  any  new  grounds  of  of- 
fence, are  repugnant  to  all  terms  of  amity.  Any  one 
may  assume  this  threatening  posture,  by  erecting  new 
fortifications  in  his  territory,  as  a  means  of  annoyance 
rather  than  offence,  by  raising  an  unusual  number  of 
forces:  when  it  is  evident  that  these  preparations  can 
be  designed  against  no  one,  but  the  power  with  whom 
he  has  concluded  peace. 

XLI.  Nor  is  it  contrary  to  the  relations  of  amity  to  re- 
ceive individual  subjects,  who  wish  to  remove  from  the 
dominions  of  one  power  to  those  of  another.  For  that  is 
not  only  a  principle  of  natural  liberty,  but  favourable  to 
the  general  intercourse  of  mankind.  On  the  same  grounds 
a  refuge  given  to  exiles  may  be  justified.  But  it  is  not 
lawful  to  receive  whole  towns,  or  great  bodies,  forming 
an  integral  part  of  the  state.  Nor  is  it  more  allowable 
to  receive  those,  who  are  bound  to  the  service  of  their 
own  state  by  oath  or  other  engagement. 

XLVI.*  There  are  two  kinds  of  arbitration,  the  one  of 
such  a  nature  that  it  must  be  obeyed  whether  the 

*  Sections  XLII,  XLIII,  XLIV,  &  XLV,  of  the  original,  relating  to 
decisions  by  lot  and  single  combat,  are  omitted  in  the  translation. — 
TRANSLATOR. 


398  HUGO   GROTIUS 

decision  be  just  or  unjust,  which,  Procuius  says,  is  observed 
when,  after  a  compromise,  recourse  is  had  to  arbitration. 

The  other  kind  of  arbitration  is  where  a  matter  ought 
to  be  left  to  the  decision  of  a  person,  in  whose  integrity 
confidence  may  be  placed,  of  which  Celsus  has  given  us 
an  example  in  Jbds  answer,  where  he  says,  <(  though  a 
freedman  has  sworn,  that  he  will  do  all  the  services, 
which  his  patron  may  adjudge,  the  will  of  the  patron  ought 
not  to  be  ratified,  unless  his  determination  be  just.w 

This  interpretation  of  an  oath,  though  comformable  to 
the  Roman  laws,  is  by  no  means  consistent  with  the 
simplicity  of  language  considered  by  itself.  For  the  jus- 
tice of  the  case  remains  the  same,  in  whatever  way  an 
arbiter  is  chosen,  whether  it  be  to  reconcile  contending 
parties,  a  character,  in  which  we  find  the  Athenians  act- 
ing between  the  Rhodians  and  Demetrius,  or  to  make  an 
absolute  decree. 

Although  the  civil  law  may  decide  upon  the  conduct 
of  such  arbiters  to  whom  a  compromise  is  referred,  so  as 
to  allow  of  an  appeal  from  their  decrees,  or  of  complaints 
against  their  injustice,  this  can  never  take  place  between 
kings  and  nations.  For  here  there  is  no  superior  power, 
that  can  either  rivet  or  relax  the  bonds  of  an  engagement. 
The  decree  therefore  of  such  arbiters  must  be  final  and 
without  appeal. 

XL VI I.  With  respect  to  the  office  of  an  arbiter  or 
mediator,  it  is  proper  to  inquire,  whether  the  person  has 
been  appointed  in  the  character  of  a  judge,  or  with  powers 
more  extensive  and  discretionary  than  legal  powers. 
Aristotle  says  that  <(an  equitable  and  moderate  man  will 
have  recourse  to  arbitration  rather  than  to  strict  law, 
ADDING  AS  A  REASON,  because  an  arbitrator  may  consider 
the  equity  of  the  case,  whereas  a  judge  is  bound  by  the 
letter  of  the  law.  Therefore  arbitration  was  introduced 
to  give  equity  its  due  weight.* 

Equity  does  not  signify  in  this  place,  as  it  does  else- 
where, that  part  of  justice,  which  gives  a  strict  interpre- 
tation of  the  general  expressions  of  the  law,  according 
to  the  intention  of  the  law-giver.  For  that  is  left  to  the 
judge.  But  it  includes  every  thing,  which  it  is  more  proper 
to  do  than  to  omit,  even  beyond  what  is  required  by  the 
express  rules  of  justice. — Such  kind  of  arbitration  being 
common  among  individuals  and  subjects  of  the  same 
empire,  it  is  recommended  by  St.  Paul  as  a  practice 
peculiarly  proper  for  Christians.  Yet  in  doubtful  cases 


THE   RIGHTS   OF   WAR  AND   PEACE  399 

it  ought  not  to  be  presumed  that  such  extensive  powers 
are  granted.  For  where  there  is  any  obscurity  it  abridges 
this  latitude  of  decision:  and  especially  in  contested  mat- 
ters, between  independent  sovereigns,  who,  having  no 
common  judge,  are  supposed  to  bind  the  mediators,  and 
arbitrators,  whom  they  chuse,  by  the  strictest  rules  of 
law. 

XL VI II.  It  is  to  be  observed  that  arbitrators  chosen 
by  nations  or  sovereign  princes  may  decide  upon  the 
matter  in  dispute,  but  not  confer  a  possession,  which  is 
a  matter  that  can  only  be  decided  by  established  rules 
of  civil  law,  for  by  the  law  of  nations  the  right  of  pos- 
session follows  the  right  of  property.  Therefore  while 
a  cause  is  pending,  no  innovation  ought  to  be  made,  both 
to  prevent  partiality  and  prejudice,  and  because,  after 
possession  has  been  given,  recovery  is  difficult.  Livy  in 
his  account  of  some  disputed  points  between  the  people 
of  Carthage  and  Masinissa,  says,  (<the  Ambassadors  did 
not  change  the  right  of  possession. J) 

XLIX.  There  is  another  kind  of  arbitration,  which 
takes  place,  when  any  one  makes  an  absolute  surrender 
of  himself  and  all  his  rights  to  an  enemy  or  foreign 
power.  But  still  a  distinction  ought  to  be  made,  even 
here,  between  the  bounds  of  right  and  wrong,  limiting 
the  submission  of  the  vanquished,  on  the  one  hand,  and 
the  authority  of  the  conqueror,  on  the  other,  to  a  certain 
degree. 

For  there  are  particular  duties,  which  ought  to  be  ob- 
served in  the  exercise  of  EVERY  right.  Taking  the  right 
of  the  conqueror  in  its  literal  meaning  and  full  extent, 
it  is  true  that  he  is  entitled  to  impose  ANY  terms  upon 
the  conquered,  who  is  now  placed,  by  the  external  laws  of 
war,  in  a  situation  to  be  deprived  of  every  thing,  even 
personal  liberty  or  life,  much  more  then,  of  all  his  prop- 
erty, either  of  a  public  or  private  kind. 

L.  The  first  object  of  a  conqueror  should  be  to  avoid 
committing  any  act  of  injustice,  or  using  any  rigour,  ex- 
cept the  demerits  and  atrocity  of  the  enemy  require  it ;  to 
take  nothing  but  by  way  of  lawful  punishment.  Observ- 
ing these  bounds,  as  far  as  security  allows,  it  is  always 
laudable  to  incline  to  moderation  and  clemency.  Some- 
times even  circumstances  may  require  such  a  line  of  con- 
duct, and  the  best  conclusion  of  any  war  is  that,  which 
reconciles  all  contending  claims  by  a  fair  adjustment,  and 
a  general  amnesty.  The  moderation  and  clemency  to 


400  HUGO   GROTIUS 

which  the  vanquished  appeal,  are  by  no  means  an  abolition 
but  only  a  mitigation  of  the  conqueror's  absolute  right. 

LI.  There  are  conditional  surrenders,  reserving  to  the 
individuals,  certain  personal  privileges,  and  remains  of 
their  property,  and  to  the  state,  certain  parts  of  its  con- 
stitution. 

LII.  Hostages  and  pledges  may  be  considered  as  an 
appendage  to  treaties.  And  some  of  those  hostages  are  a 
voluntary  surrender,  and  others  given  by  authority  of  the 
state  as  a  security.  For  the  sovereign  has  the  same  power 
over  the  persons  and  actions  of  his  subjects,  as  over  their 
property.  But  the  state  or  its  ruler  will  be  bound  to 
recompense  individuals  or  their  relatives  for  any  incon- 
veniences they  may  sustain. 

LIII.  Though  the  law  of  nations  may  in  its  literal 
rigour  allow  of  putting  hostages  to  death,  it  can  never 
conscientiously  be  enforced,  but  where  they  have  com- 
mitted crimes  deserving  of  capital  punishment.  Neither 
can  they  be  made  slaves.  Indeed  the  law  of  nations  per- 
mits them  to  leave  their  property  to  their  heirs,  although 
by  the  Roman  law  provision  was  made  for  confiscating  it 
to  the  state. 

LIV.  If  it  should  be  asked  whether  hostages  may  law- 
fully make  their  escape :  it  may  be  answered  in  the  neg- 
ative, especially  if,  at  first,  or  afterwards,  they  have 
pledged  their  faith  to  remain,  upon  condition  of  being 
prisoners  at  large.  But  it  does  not  appear  that  states  so 
much  intended  to  impose  a  hardship  upon  their  subjects 
by  forbidding  their  escape,  as  to  give  the  enemy  security 
for  the  performance  of  their  engagements. 

LV.  The  obligation  of  hostages  is  of  an  odious  nature, 
as  being  unfriendly  to  personal  liberty,  and  arising  from 
the  act  of  another.  Therefore  a  strict  interpretation 
must  be  given  to  such  engagements,  so  that  hostages  de- 
livered on  one  account  cannot  be  detained  on  any  other, 
nor  for  any  contract,  where  hostages  are  not  required. 
But  if  in  another  case  there  has  been  any  violation  of 
good  faith,  or  any  debt  contracted,  hostages  may  be  de- 
tained, not  as  hostages,  but  in  the  capacity  of  subjects, 
whom  the  law  of  nations  makes  liable  to  be  seized  and 
detained  for  the  acts  of  their  sovereigns.  To  guard 
against  which,  provision  may  be  made  by  additional 
clauses  for  the  restoration  of  hostages,  whenever  the  en- 
gagement for  which  they  were  delivered  has  been  ful- 
filled. 


THE   RIGHTS   OF   WAR   AND   PEACE  401 

LVI.  Whoever  has  been  delivered  as  a  hostage  for 
other  prisoners,  or  for  the  redemption  of  other  hostages, 
will  naturally  be  released  upon  the  death  of  those  per- 
sons. For  by  death  the  right  of  the  pledge  is  extin- 
guished in  the  same  manner  as  by  the  ransom  of  a 
prisoner.  And  therefore,  according  to  Ulpian,  as  a  PER- 
SONAL debt  is  confined  to  him,  who  has  contracted  it,  so 
one  person,  being  substituted  for  another,  cannot  be  de- 
tained any  longer  than  while  the  obligation  of  that  other 
continues. 

LVII.  The  decision,  whether  hostages  can  be  detained 
upon  the  death  of  the  sovereign,  by  whom  they  were  de- 
livered, must  depend  upon  the  nature  of  the  engage- 
ments, which  he  has  made.  If  they  are  PERSONAL,  they 
continue  in  force  only  during  his  natural  life,  but  if  they 
are  what  are  called  REAL  or  more  PERMANENT  treaties, 
they  pass  with  all  their  consequences  to  his  successors. 
For  ACCESSORY  articles  cannot  authorise  any  devi- 
ation from  the  GENERAL  rule  of  interpreting  the 
fundamental  and  principal  points  of  a  treaty,  but  the  ac- 
cessory articles  themselves  ought  rather  to  be  explained 
in  conformity  to  those  general  rules. 

LVI II.  A  cursory  observation  may  be  made,  that 
hostages  are  sometimes  considered,  not  as  appendages, 
but  as  forming  the  principal  part  of  an  engagement, 
where  any  one  is  bound  not  for  himself,  but  for  another, 
and,  in  case  of  non-performance,  being  obliged  to  pay 
damages,  his  hostages  or  sureties  are  answerable  in  his 
stead. — There  is  not  only  some  thing  of  harshness,  but 
even  injustice  in  the  opinion  that  hostages  may  be  bound 
for  the  conduct  of  another  even  without  their  own  con- 
sent. 

LIX.  Pledges  have  some  characteristics  in  common 
with  hostages,  and  some  peculiar  to  themselves.  It  is  a 
common  characteristic  of  both  to  be  detained  for  some- 
thing else  that  is  due,  except  where  public  faith  is  given,  and 
provision  made  to  the  contrary.  Pledges  may  be  detained 
with  greater  latitude  than  hostages;  which  is  one  of 
their  peculiar  characteristics,  there  being  less  of  odium 
in  the  former  case  than  in  the  latter:  THINGS  being  of  a 
nature  more  proper  for  detention  than  PERSONS. 

LX.  No  time  can  bar  the  redemption  of  a  pledge, 
whenever  the  engagement  for  which  it  was  given  is  ful- 
filled. For  it  is  never  to  be  presumed  that  engagements 
26 


402  HUGO   GROTIUS 

proceed  from  new  causes,  when  old  and  known  causes 
can  be  assigned.  If  a  debtor  therefore  has  forborne  to 
redeem  a  pledge,  we  may  still  suppose  that  he  has  not 
abandoned  his  original  engagement,  unless  there  be  clear 
proof  to  the  contrary:  as  if,  for  instance,  though  desirous 
of  redeeming  it,  he  has  been  prevented,  or  suffered  a  space 
of  time  to  elapse  unnoticed,  that  would  be  requisite  to 
imply  his  consent. 


CHAPTER   XXL 

ON  FAITH  DURING  THE  CONTINUANCE  OF  WAR,  ON  TRUCES, 
SAFE-CONDUCTS,  AND  THE  REDEMPTION  OF  PRISONERS. 

Truces  of  an  intermediate  denomination  between  peace  and  war — 
Origin  of  the  word — New  declaration  of  war  not  necessary  after  a 
truce — Time  from  whence  a  truce  and  all  its  correspondent  obliga- 
tions and  privileges  commence  —  A  retreat  may  be  made,  or  fortifi- 
cations repaired  during  a  truce  —  Distinction  respecting  the  occupying 
of  places  —  The  case  of  a  person  prevented  from  making  his  retreat, 
aud  taken  in  the  enemy's  territories  at  the  expiration  of  a  truce, 
considered  —  Express  terms  and  consequences  of  a  truce  —  Breach 
of  a  truce  by  one  party  justifies  a  renewal  of  war  by  the  other  — 
Penalty  annexed  —  Truce  broken  by  the  acts  of  individuals  —  Rights 
belonging  to  safe-conducts  without  a  truce  —  Persons  in  a  military 
capacity  how  far  allowed  the  benefit  of  a  safe-conduct  —  Privileges 
of  goods  arising  from  thence  —  Attendants  of  the  person  protected 
by  a  safe-conduct — Safe-conduct  does  not  expire  upon  the  death  of 
the  grantor  —  Safe-conduct  given  to  continue  during  the  pleasure  of 
the  grantor —  Protection  thereof  extending  beyond  his  own  territory 
—  Redemption  of  prisoners  favoured,  and  not  to  be  prohibited 
by  law. 

I.  and  II.  IN  THE  midst  of  war  there  are  certain  points 
generally  conceded  by  the  belligerent  powers  to  each 
other,  which  Tacitus  and  Virgil  call  the  intercourse  of 
war,  and  which  comprehend  truces,  safe-conducts,  and 
the  redemption  of  prisoners. — Truces  are  conventions, 
by  which,  even  during  the  continuance  of  war,  hostili- 
ties on  each  side  cease  for  a  time.  DURING  THE  CON- 
TINUANCE OF  WAR;  for,  as  Cicero  says,  in  his  eighth 
Philippic,  between  peace  and  war  there  is  no  medium. 
By  war  is  meant  a  state  of  affairs,  which  may  exist 
even  while  its  operations  are  not  continued.  Therefore, 
as  Gellius  has  said,  a  peace  and  a  truce  are  not  the 
same,  for  the  war  still  continues,  though  fighting  may 
cease.  So  that  any  agreement,  deemed  valid  in  the 
time  of  war,  will  be  valid  also  during  a  truce,  unless  it 
evidently  appears  that  it  is  not  the  state  of  affairs,  which 
is  considered,  but  the  commission  of  particular  acts  of 
hostility.  On  the  other  hand,  any  thing,  agreed  to,  to  be 
done,  when  peace  shall  be  made,  cannot  take  place  in 
consequence  of  a  truce.  There  is  no  uniform  and  in- 
variable period  fixed  for  the  continuance  of  a  truce,  it 

(403) 


404  HUGO   GROTIUS 

may  be  made  for  any  time,  even  for  twenty,  or  thirty 
years,  of  which  there  are  many  instances  in  ancient  his- 
tory. A  truce,  though  a  repose  from  war,  does  not 
amount  to  a  peace,  therefore  historians  are  correct  in 
saying  that  a  peace  has  often  been  refused,  when  a  truce 
has  been  granted. 

III.  After   a    truce   a    new   declaration    of    war   is  not 
necessary. 

For  upon  the  removal  of  a  temporary  impediment,  the 
state  of  warfare  revives  in  full  force,  which  has  only  been 
lulled  asleep,  but  not  extinguished.  Yet  we  read  in 
Livy,  that  it  was  the  opinion  of  the  heralds'  college,  that 
after  the  expiration  of  a  truce  war  ought  to  be  declared. 
But  the  ancient  Romans  only  meant  to  shew  by  those 
superfluous  precautions,  how  much  they  loved  peace,  and 
upon  what  just  grounds  they  were  dragged  into  war. 

IV.  The  time,    generally   assigned  for  the  continuance 
of  a  truce,  is  either  some  uninterrupted  period,  of  a  HUN- 
DRED DAYS,  for  instance,  or  a  space  limited  by  some  arti- 
ficial boundary  of  time,  as  the  Calends  of  March.     In  the 
former   case,  the  calculation  is  to  be  made    according  to 
the  natural  motion  of  time :  whereas  all  civil  computations 
depend  upon  the  laws  and   customs  of  each  country.     In 
the   other   case  it  is  generally   made  a  matter   of   doubt, 
whether  in  naming    any  particular   day,    month  or  year, 
for  the  expiration  of  a  truce,  that  particular  day,  month, 
or  year,  are   comprehended  in  the    term  of  the  truce,  or 
excluded  from  it. 

In  natural  things  there  are  two  kinds  of  boundaries, 
one  of  which  forms  an  inseparable  part  of  the  things 
themselves,  as  the  skin  does  of  the  body,  and  the  other 
only  adjoins  them,  as  a  river  adjoins  the  land,  which  it 
bounds  or  washes.  In  either  of  these  ways  voluntary 
boundaries  may  be  appointed.  But  it  seems  more  natural 
for  a  boundary  to  be  taken  as  a  part  of  the  thing  itself. 
Aristotle  defines  the  extremity  of  anything  to  be  its 
boundary:  a  meaning  to  which  general  custom  conforms: 
—  thus  if  any  one  has  said  that  a  thing  is  to  be  done 
before  the  day  of  his  death,  the  day  on  which  he  actu- 
ally dies  is  to  be  taken  into  the  account  as  forming  part 
of  the  term.  Spurinna  had  apprised  Caesar  of  his  dan- 
ger, which  could  not  extend  beyond  the  Ides  of  March. 
Being  accosted,  respecting  the  matter,  on  the  very  day, 
he  said,  the  Ides  of  March  are  come,  but  not  passed. 
Such  an  interpretation  is  the  more  proper  where  the  pro- 


THE   RIGHTS   OF   WAR   AND    PEACE  405 

longation  of  time  is  of  a  favourable  nature,  as  it  is  in 
truces,  which  are  calculated  to  suspend  the  effusion  of 
human  blood. 

The  day,  FROM  which  any  measure  of  time  is  said  to 
begin,  cannot  be  taken  into  the  account ;  because  the  word, 
FROM,  used  on  that  occasion,  implies  separation  and  not 
conjunction. 

V.  It  is  to  be  observed    that  truces,  and   engagements 
of  that    kind    immediately    bind    the    contracting   parties 
themselves  from    the  very  moment   they    are    concluded. 
But  the  subjects  on  either  side  are  only  bound  from  the 
time  that  those  engagements   have  received   the  form  of 
a  law,  for  which  public  notice  and  the  regular  promulga- 
tion are  necessary.     Upon  this   being  done  they  immedi- 
ately derive  their  authority  to  bind  the  subjects.     But  if 
notice   thereof    has    only   been    given    in   one   place,  the 
observance  of  them  cannot  be  enforced  through  the  whole 
dominions  of  the  respective   sovereigns   at   one   moment, 
but  sufficient  time  must  be  allowed  for  the  due  promul- 
gation of  them  to   be  made  in  every  part.     Therefore   if 
in  the  meantime  the  subjects  on   either    side    have   com- 
mitted an  infraction  of  the  truce,  they  shall   be    exempt 
from  punishment,  but  the  contracting  parties  themselves 
shall  be  obliged  to  repair  the  damages. 

VI.  The  very  definition  of  a  truce  implies  what  actions 
are  lawful,  and  what  are    unlawful    during    the    continu- 
ance   of    it.     All    acts    of    hostility    are    unlawful    either 
against  the  persons  or  goods    of    an   enemy.     For  every 
act  of  violence   during  a  truce  is  contrary  to  the  law   of 
nations.     Even  things  belonging  to  an  enemy,  which  by 
any  accident  have  fallen  into    our    hands,   although   they 
had  been  ours  before,  must  be   restored.     Because   they 
had  become  theirs    by  that    external   right    according   to 
which  such  things  are  adjudged.     And  this  is  what  Paulus 
the  lawyer  says,  that  during  the  time  of  a  truce  the  law 
of  postliminium   cannot   exist,  because   to   constitute   the 
law  of  postliminium  there  must  be  the  previous  right   of 
making  captures  in  war,  which  ceases  upon   the   making 
of  a  truce. 

Either  party  may  go  to  or  return  from,  any  particular 
place,  but  without  any  warlike  apparatus  or  force,  that 
may  prove  a  means  of  annoyance,  or  be  attended  with 
any  danger.  This  is  observed  by  Servius  on  that  pas- 
sage of  Virgil,  where  the  poet  says,  (<  the  Latins  mingled 
with  their  foes  with  impunity, B  where  he  relates  also  that 


406  HUGO   GROTIUS 

upon  a  truce  being  made  between  Porsenna  and  the  Ro- 
mans during  a  siege,  when  the  games  of  the  circus  were 
celebrating,  the  generals  of  the  enemy  entered  the  city, 
contented  in  the  lists,  and  were  many  of  them  crowned 
as  conquerors. 

VII.  To  withdraw  farther  into  the  country  with  an  army, 
which  we  find  from  Livy  that  Philip  did,  is  no  way  con- 
trary to  the  intention  and  principles  of   a  truce:   neither 
is  it  any  breach  of  it  to  repair  the  walls  of   a  place,    or 
to  raise  new    forces,    unless    it   has    been    prohibited   by 
special  agreement. 

VIII.  To    corrupt   an    enemy's  garrisons,   in   order    to 
seize  upon  the   places  which   he  holds,  is    undoubtedly  a 
breach   of   the    spirit    and   letter   of   any    truce.     For  no 
such  advantage  can  justly  be   gained  but  by  the  laws  of 
war.     The  same  rule  is  to   be  laid   down   respecting  the 
revolt  of  subjects   to   an  enemy.     In   the  fourth   book  of 
Thucydides,   Brasidas   received    the    city  of   Menda,    that 
revolted  from  the  Athenians  to  the  Lacedaemonians  dur- 
ing a  truce,  and  excused  his  conduct  upon  the  plea  of  the 
Athenians  having  done  the  same. 

Either  of  the  belligerent  powers  may  take  possession 
of  places  that  have  been  deserted:  if  they  have  been 
REALLY  deserted  by  the  former  owner  with  the  intention 
never  to  occupy  them  again,  but  not  merely  because  they 
have  been  left  unguarded,  either  BEFORE,  or  AFTER,  the 
making  of  a  truce.  For  the  former  owner's  right  of 
dominion  therein  still  remaining  renders  another's  pos- 
session of  them  unjust.  Which  is  a  complete  refutation 
of  the  cavil  of  Belisarius  against  the  Goths,  who  seized 
upon  some  places  during  a  truce,  under  pretext  of  their 
being  left  without  garrisons. 

IX.  It  is  made  a   subject  of  inquiry,  whether  any  one 
being  prevented  by  an  unforeseen  accident  from  making 
his  retreat,  and  being  taken  within    the  enemy's    territo- 
ries, at    the  expiration  of  a  truce,  has  a  right  to  return. 
Considering  the  external  law  of  nations,  he  is  undoubtedly 
upon  the  same  footing  as    one,  who,  having  gone  into  a 
foreign  country,  must,  upon  the  sudden   breaking  out  of 
war,  be    detained    there    as   an  enemy  till   the  return  of 
peace.     Nor  is  there    any  thing  contrary  to  strict  justice 
in  this;  as  the  goods  and   persons  of  enemies  are  bound 
for   the  debt    of   the  state,  and    may  be   seized  for   pay- 
ment.    Nor   has    such    a   one    more    reason    to  complain 
than  innumerable  other  innocent  persons,  on  whose  heads 


THE   RIGHTS   OF  WAR  AND  PEACE  407 

the  calamities  of  war  have  fallen.  Nor  is  there  occasion 
to  refer  to  the  case,  which  Cicero  has  alleged,  in  his 
second  book  ON  INVENTION,  of  a  ship  of  war  driven  by 
the  violence  of  the  wind  into  a  port,  where  by  law  it  was 
liable  to  confiscation.  For  in  the  former  case  the  unfore- 
seen accident  must  do  away  all  idea  of  punishment,  and 
in  the  latter,  the  right  of  confiscation  must  be  suspended 
for  a  time.  Yet  there  can  be  no  doubt  but  there  is 
more  of  generosity  and  kindness  in  releasing  such  a 
person  than  in  insisting  upon  the  right  of  detaining  him. 

X.  The   express   nature  of   a  convention  renders   some 
things  unlawful  during  a  truce,  as  for    instance,  if  it   is 
granted  only  in  order  to   bury   the   dead,    neither   party 
will  have  a  right  to  depart  from  those  conditions.     Thus 
if  a  siege    is   suspended  by   a  truce,    and   nothing   more 
than  such  a  suspension  is  thereby  granted;   the  besieged 
cannot  lawfully  avail  himself  of  it,  to  convey  fresh  sup- 
plies of  troops  and  stores  into  the  place.     For  such  con- 
ventions ought  not  to  prove   beneficial   to  one  party,  to 
the  prejudice  of  the    other,    who    grants    them.     Some- 
times it  is   stipulated  that  no  one    shall    be    allowed   to 
pass  to  and  fro.     Sometimes  the   prohibition   extends   to 
persons  and  not  to  goods.     In  which  case,  if  any  one,  in 
protecting  his  goods,  hurts   an  enemy,  the   act  will  not 
constitute    a   breach   of  the   truce.     For   as   it  is   lawful 
that  either  party   should   defend   his   property,    an    acci- 
dental  circumstance   cannot  be  deemed   an  infringement 
of  that  personal  security,  which  was  the  principal  object 
provided  for  by  the  truce. 

XI.  If  the  faith  of  a  truce   is    broken   by   one   of   the 
parties,  the  other  who  is   thereby  injured,  will  undoubt- 
edly have  a  right  to  renew  hostilities  without  any  formal 
declaration.     For  every   article  in   a  treaty   contains  an 
implied  condition  of  mutual  observance.     Indeed  we  may 
find  in  history  instances  of  those,  who   have   adhered   to 
a  truce  till  its   expiration,    notwithstanding   a  breach   on 
the  other  side.     But  on  the  other  hand  there  are  numer- 
ous instances  of  hostilities  commenced  against  those,  who 
have  broken  their  conventions:  a  variation,  which  proves 
that  it  is  at  the   option  of   the   injured   party   to  use    or 
not  to  use  his  right  of  renewing  war  upon  the  breach  of 
a  truce. 

XII.  It   is    evident    that,    if   the    stipulated    penalty  is 
demanded  of  the  aggressor,  and  paid   by  him,  the  other 
party  can  no   longer  maintain   his  right  of  renewing  the 


4o8  HUGO   GROTIUS 

war.  For  the  payment  of  the  penalty  restores  every  thing 
to  its  original  footing.  And  on  the  other  hand,  a  renewal 
of  hostilities  implies  an  intention  of  the  injured  party  to 
abandon  the  penalty,  since  he  has  had  his  option. 

XIII.  A  truce  is  not  broken  by  the  acts  of  individuals, 
unless   they  are  sanctioned   by  the   authority  of  the  sov- 
ereign, which  is   generally  supposed  to   be   given,  where 
the  delinquents  are  neither   punished    nor    delivered   up, 
nor  restitution  is  made  of  goods  taken  away. 

XIV.  The    rights    belonging    to    a    safe-conduct    are    a 
privilege  distinct  from  the  nature  of  a  truce,  and  our  in- 
terpretation of  them   must  be  guided   by  the   rules   laid 
down  respecting  privileges. 

Such  a  privilege,  to  be  perfect,  must  be  neither  inju- 
rious to  a  third  person,  nor  prejudicial  to  the  giver.  There- 
fore in  explaining  the  terms,  in  which  it  is  couched,  a 
greater  latitude  of  interpretation  may  be  allowed,  espe- 
cially where  the  party  suing  for  it  receives  no  benefit, 
but  rather  confers  one,  and  still  more  so  where  the  ad- 
vantage, accruing  to  the  individual  from  thence,  redounds 
also  to  the  public  benefit  of  the  state. 

Therefore  the  literal  interpretation,  which  the  words 
may  bear,  ought  to  be  rejected,  unless  otherwise  some 
absurdity  would  follow,  or  there  is  every  reason  to  sup- 
pose that  such  a  literal  interpretation  is  most  conforma- 
ble to  the  will  and  intention  of  the  parties  concerned. 
In  the  same  manner,  on  the  other  hand,  a  greater  latitude 
of  interpretation  may  be  allowed,  in  order  to  avoid  the 
same  apprehended  absurdity,  or  to  comply  more  fully 
with  the  most  urgent  and  forcible  conjectures  respecting 
the  will  of  the  contracting  parties. 

XV.  Hence  we  may  infer  that  a  safe-conduct,  granted 
to  SOLDIERS,  includes  not  only  those  of    an  INTERMEDIATE 
RANK,    but     the    HIGHEST    COMMANDERS.      For    that    is    a 
signification  strictly  and  properly  authorised  by  the  words 
themselves,  although  they  MAY  be  taken  in  a  more  LIMITED 
meaning.       So    the    term    clergymen    includes    those    of 
episcopal  as  well  as  those  of  inferior  rank,  and  by  those 
serving  on  board  a  fleet,  we   mean  not   only  sailors,  but 
all   persons   found    there,    who   have   taken    the   military 
oath. 

XVI.  Where  a  free  passage  is  granted,  liberty  to  return 
is  evidently  implied,  not  from  the  literal  force  of  the  ex- 
pressions   themselves,  but  to  avoid   the    absurdity  which 
would   follow  the    jrant  of   a  privilege,  that  could  never 


THE   RIGHTS   OF   WAR  AND   PEACE  409 

be  made  use  of.  And  by  the  liberty  of  coming  and  going 
is  meant  a  safe  passage  till  the  person  arrives  in  a  place 
of  perfect  security.  From  hence  the  good  faith  of  Alex- 
ander was  impeached,  who  ordered  those  to  be  murdered 
on  the  way,  whom  he  had  allowed  to  depart. 

Any  one  may  be  allowed  to  go  away  without  being 
allowed  to  return.  But  no  power  can  properly  refuse 
admitting  any  one,  to  whom  he  has  granted  leave  to 
come,  and  on  the  other  hand,  his  admission  implies  such 
a  leave  to  have  been  given.  GOING  AWAY  and  RETURNING 
are  indeed  very  different,  nor  can  any  construction  of 
language  give  them  the  same  meaning.  If  there  be  any 
mistake,  although  it  may  confer  no  right,  it  exempts  the 
party  from  all  penalties. — A  person  permitted  to  come 
shall  only  come  ONCE,  but  not  a  SECOND  TIME,  unless  the 
additional  mention  of  some  time  may  supply  room  to 
think  otherwise. 

XVII.  A  son  shares  the  fate  of  his  father,  and  a  wife 
of  her  husband  no  farther  than  as  to  the  right  of  resid- 
ing, for   men    reside  with  their  families,  but   in   general 
undertake  public  missions  without  them.     Yet  one  or  two 
servants,    though    not    expressly    named,    are    generally 
understood   to   be  included   in    a  safe-conduct,  especially 
where  it  would  be  improper  for  the  person  to  go  without 
such    attendants.     For    every    necessary    consequence    is 
understood  to  go  along  with  any  privilege  that  is  given. 

XVIII.  In    the    same  manner  no  other  effects   are   in- 
cluded in  a  safe-conduct,  but    such  as  are   usually  taken 
on  a  journey. 

XIX.  The    name    of    attendants,    expressed    in    a   safe- 
conduct,  granted  to  any  one,  will  not  allow  him  to  extend 
the  protection   of    it    to    men   of    atrocious   and   criminal 
characters,  such  as  pirates,  robbers,  and  deserters.     And 
the  COUNTRY  of   the  attendants   being  named   shews  that 
the  protection  cannot  extend  to  those  of   another  nation. 

XX.  The  privileges  of  a  safe-conduct  do  not,  in  doubt- 
ful   cases,  expire   upon   the   demise  of  the  sovereign  who 
granted  it,  according  to  what  was   said  in  a  former  part 
of  this  treatise  on  the  nature  of  favours  granted  by  kings 
and  sovereign  princes. 

XXI.  It  has  often  been  a  disputed  point,  what  is  meant 
by  the    expression    used  in    a   safe-conduct,  that   it  shall 
continue    during   the    PLEASURE    OF    THE    GRANTOR.       But 
there    seems    most   reason   and   truth   in    the   opinion    of 
those,  who  maintain  that  the  privilege  shall  continue,  till 


410  HUGO    GROTIUS 

the  grantor  make  some  new  declaration  of  his  will  to  the 
contrary.  Because,  in  doubtful  cases,  a  favour  is  pre- 
sumed to  continue,  till  the  right,  which  it  conveys,  is 
accomplished.  But  not  so,  where  all  possibility  of  WILL 
in  the  grantor  has  ceased,  which  happens  by  his  death. 
For  upon  the  death  of  the  person  all  presumption  of  his 
WILL  continuing  must  cease:  as  an  accident  vanishes 
when  the  substance  is  destroyed. 

XXII.  The  privilege  of  a  safe-conduct  protects  the  per- 
son,   to  whom  it  is  given,  even  beyond  the  territories  of 
the  grantor:   because  it  is  given   as   a  protection  against 
the   rights  of  war,  which   are   not  confined   to  his  terri- 
tory. 

XXIII.  The  redemption  of  prisoners  is  much  favoured, 
particularly  among  Christian   states,  to  whom  the  divine 
law    peculiarly    recommends    it     as    a    kind    of    mercy. 
Lactantius  calls  the  redemption  of  prisoners  a  great  and 
splendid  office  of  justice. 


CHAPTER   XXII. 

ON   THE    FAITH   ON    THOSE    INVESTED    WITH   SUBORDINATE 
POWERS  IN  WAR. 

Commanders  —  Extent  of  their  engagements  in  binding  the  sovereign  — 
Exceeding  their  commission  —  The  opposite  party  bound  by  such 
engagements  —  Power  of  commanders  in  war,  or  of  magistrates  with 
respect  to  those  under  their  authority — Generals  cannot  make  peace, 
but  may  conclude  a  truce  —  Extent  of  their  authority  in  granting  pro- 
tection to  persons  and  property  —  Such  engagements  to  be  strictly 
interpreted  —  Interpretation  of  capitulations  accepted  by  generals — 
Precautions  necessary  till  the  pleasure  of  the  sovereign  be  known  — 
Promise  to  surrender  a  town. 

I.  ULPIAN  reckons  the  agreements,  entered  into  between 
the  generals  of  opposite  armies   during    the   course   of  a 
war,  among  public  conventions.     So  that  after  explaining 
the  nature  of  the  faith  pledged  by  sovereign  powers  to 
each   other,  it    will   be   proper   to  make   a   short   inquiry 
into   the   nature   of    engagements    made   by    subordinate 
authorities;  whether    those    authorities    bear   a  near   ap- 
proach  to   supreme    power,  as    commanders   in   chief,   or 
are  removed  to  a  greater  distance  from  it.     Caesar  makes 
the   following   distinction   between  them,  observing   that 
the  offices  of  commander  and  deputy   are  very  different; 
the  latter  being  obliged   to   act   according    to    prescribed 
rules,  and    the    former   having   unqualified    discretion   in 
matters  of  the  highest  importance. 

II.  The    engagements    of    those     invested     with    such 
subordinate    powers   are    to    be    considered    in    a    double 
point  of  view,  whether  they  are  binding  upon  the  sover- 
eign,   or    only    upon    themselves.     The    former   of    these 
points  has  been  already  settled  in  a  former  part  of  this 
treatise,  where  it  was  shewn  that  a  person  is  bound  by 
the  measures  of  an  agent,  whom  he  has  appointed  to  act 
in  his  name,  whether  his  intentions  have  been  expressly 
named,  or  are  only  to  be   gathered    from   the  nature   of 
the  employment.     For  whoever  gives  another  a  commis- 
sion, gives  him  along  with  it  every   thing   in   his   power 
that  is  necessary  to  the  execution    of   it.     So   that  there 
are  two  ways,  in  which  persons  acting  with   subordinate 
powers  may  bind  their  principals  by   their  conduct,  and 

(4") 


4i2  HUGO   GROTIUS 

that  is,  by  doing"  what  is  probably  thought  to  be  con- 
tained in  their  commission,  or  apart  from  that,  by  acting 
according  to  special  instructions,  generally  known,  at 
least  to  those,  with  whom  they  treat. 

III.  There   are    other  modes  too,  in  which  a  sovereign 
may  be  bound  by   the  previous   act  of  his  minister;  but 
not  in  such  a  manner  as  to   suppose  the  obligation  owes 
its  EXISTENCE  to    that  action,  which   only   gives   occasion 
to  its  fulfilment.     And  there  are  two  ways,  in  which  this 
may  happen,  either  by  the  consent  of   the  sovereign,  or 
by  the  very  nature  of   the  thing  itself.     His  consent  ap- 
pears by  his  ratification  of   the   act,  either  expressed  or 
implied,  and  that  is,  where  a  sovereign  has  known   and 
suffered  a  thing  to  be  done,  which  can  be  accounted  for 
upon  no  other  motive  but  that  of  approval  and   consent. 

The  very  nature  and  obligation  of  all  contracts  imply 
that  one  party  is  not  to  gain  advantage  by  the  loss  of 
another.  Or  if  advantage  is  expected  from  a  contract, 
the  contract  must  be  fulfilled  or  the  advantage  abandoned. 
And  in  this  sense,  and  no  other,  the  proverbial  expres- 
sion, that  whatever  is  beneficial  is  valid,  is  to  be  under- 
stood. 

On  the  other  hand  a  charge  of  injustice  may  fairly  be 
brought  against  those,  who  condemn  an  engagement,  yet 
retain  the  advantages,  which  they  could  not  have  had 
without  it. 

IV.  It  is  necessary  to   repeat   an  observation  made  be- 
fore, that  a   sovereign,  who   has   given   a   commission   to 
another,  is   bound   by   the    conduct  of  that   person,  even 
though  he  may  have  acted  contrary  to  his  secret   instruc- 
tions, provided  he  has  not  gone   beyond  the  limits  of  his 
ostensible,  and  public  commission. 

This  was  a  principle  of  equity,  which  the  Roman 
Praetor  observed  in  actions  brought  against  employers 
for  the  conduct  of  their  agents  or  factors.  An  employer 
could  not  be  made  answerable  for  any  act  or  measure  of 
his  factor,  but  such  as  was  immediately  connected  with 
the  business,  in  which  he  employed  him.  Nor  could  HE 
be  considered  as  an  appointed  agent,  with  WHOM  the 
public  were  apprized,  by  due  notice,  to  make  no  contract 
—  If  such  notice  was  given,  without  having  come  to  the 
knowledge  of  the  contracting  parties,  the  employer  was 
bound  by  the  conduct  of  the  agent.  If  any  one  chuses 
to  make  a  contract  on  certain  conditions,  or  through  the 
intervention  of  a  third  person,  it  is  right  and  necessary 


THE   RIGHTS   OF  WAR   AND   PEACE  413 

for  that  person  to  observe  the  particular  conditions  on 
which  he  is  employed. 

From  hence  it  follows  that  kings  and  nations  are  more 
or  less  bound  by  the  conventions  of  their  commanders 
in  proportion  as  their  laws,  conditions,  and  customs,  are 
more  or  less  known.  If  the  meaning  of  their  intentions 
is  not  evident,  conjecture  may  supply  the  place  of  evi- 
dence, as  it  is  natural  to  suppose  that  any  one  employed 
would  be  invested  with  full  powers  sufficient  to  execute 
his  commission. 

A  person  acting  in  a  subordinate  capacity,  if  he  has  ex- 
ceeded the  powers  of  his  commission  will  be  bound  to 
make  reparation,  if  he  cannot  fulfil  his  engagement,  un- 
less he  is  prevented  from  doing  so  by  some  well  known 
law. 

But  if  he  has  been  guilty  of  treachery  also,  in  pre- 
tending to  greater  powers  than  he  really  possessed,  he 
will  be  bound  to  repair  the  injury,  which  he  has  WIL- 
FULLY done,  and  to  suffer  punishment  corresponding  with 
his  offence.  For  the  first  of  these  offences,  his  property 
is  answerable,  and  on  failure  of  that,  his  personal  lib- 
erty: and  in  the  latter  case,  his  person  or  property,  or 
both  must  be  answerable  according  to  the  magnitude  of 
the  crime. 

V.  As  a  sovereign  or  his  minister  is  always  bound  by 
every  contract,  it  is  certain  the  other   party  will  also  be 
bound  by  the  engagement:  nor  can  it  be  deemed  imper- 
fect.    For  in  this  respect  there  is  a  comparative  equality 
between  sovereign  and  subordinate  powers. 

VI.  It  is  necessary  to  consider  too    what   are  the  pow- 
ers of  subordinate  authorities   over   those  beneath  them. 
Nor  is  there  any  doubt   that    a    general    may    bind    the 
army,  and    a   magistrate,  the    inhabitants  of   a  place   by 
those  actions,  which  are    usually    done    by    commanders, 
or  magistrates,  otherwise   their   consent  would  be  neces- 
sary. 

On  the  other  hand,  in  engagements  purely  beneficial, 
the  advantage  shall  be  on  the  side  of  the  inferior:  for 
that  is  a  condition  comprehended  in  the  very  nature  of 
power. — Where  there  is  any  burdensome  condition  an- 
nexed it  shall  not  extend  beyond  the  usual  limits  in 
which  authority  is  exercised;  or  if  it  does,  it  shall  be  at 
the  option  of  the  inferior  to  accept  or  refuse  that  condition. 

VII.  As  to  the  causes  and   consequences   of   a   war,  it 
is  not  within  the  province  of  a  general   to    decide  them. 


4H  HUGO   GROTIUS 

For  concluding  and  conducting   a  war  are  very  different 
things,  and  rest  upon  distinct  kinds  of  authority. 

VIII.  and  IX.  As  to  granting  truces,  it  is  a  power 
which  belongs  not  only  to  commanders  in  chief,  but  also 
to  inferior  commanders.  And  they  may  grant  them  for 
themselves,  and  the  forces  immediately  under  their  com- 
mand, to  places  which  they  are  besieging  or  blockading: 
but  they  do  not  thereby  bind  other  parts  of  the  army. 
Generals  have  no  right  to  cede  nations,  dominions,  or  any 
kind  of  conquests  made  in  war.  They  may  relinquish  any 
thing  of  which  a  complete  conquest  has  not  been  made: 
for  towns  frequently  surrender  on  condition  of  the  in- 
habitants being  spared,  and  allowed  to  retain  their  liberty 
and  property:  cases,  in  which  there  is  no  time  for  con- 
sulting the  will  and  pleasure  of  the  sovereign.  In  the 
same  manner,  and  upon  the  same  principle  this  right  is 
allowed  to  subordinate  commanders,  if  it  falls  within  the 
nature  of  their  commission. 

X.  As  commanders,  in  all  such  engagements,  are  acting 
in  the  name  of  others,  their   resolutions  must  not  be  in- 
terpreted so  strictly  as  to  bind  their  sovereigns  to  greater 
obligations  than  they  intended  to  incur,  nor  at  the  same 
time  to  prove  prejudicial   to  the  commanders  themselves 
for  having  done  their  duty. 

XI.  An   absolute    surrender  implies   that   the  party  so 
capitulating  submits  to  the  pleasure  and  discretion  of  the 
conqueror. 

XII.  In   ancient   conventions  a  precaution  was   usually 
added,  that  they  would  be  ratified,  if  approved  of  by  the 
Roman    people.      So   that   if   no    ratification    ensued,  the 
general  was  bound  no  further  than  to  be  answerable  for 
any  advantage  that  might  have  accrued  to  himself. 

XIII.  Commanders    having    promised    to    surrender    a 
town,  may  dismiss  the  garrison. 


CHAPTER    XXIV.* 
\ 

ON  TACIT  FAITH. 

Tacit  faith — Example  of  in  desiring  to  be  taken  under  the  protection  of 
a  king  or  nation  —  Implied  in  the  demand  or  grant  of  a  conference  — 
Allowable  for  the  party  seeking  it  to  promote  his  own  interest 
thereby  provided  he  uses  no  treachery  —  Meaning  of  mute  signs  al- 
lowed by  custom. 

I.  BOTH  public,  private,  and  mixed,  conventions  admit  of 
tacit  consent,  which  is  allowed  by  custom.     For  in  what- 
ever manner  consent  is  indicated  and  accepted  it  has  the 
power   of   conveying   a   right.     And,  as  it  has   been   fre- 
quently observed  in  the  course  of  this  treatise,  there  are 
other  signs  of  consent  besides  words  and  letters :  some  of 
them  indeed  naturally  rising  out  of  the  action  itself. 

II.  An  example  of  such  tacit  agreement  may  be  found 
in  the  case  of  a  person  coming  from  an  enemy,  or  foreign 
country,  and   surrendering   himself   to   the  good  faith  of 
another   king    or    people.     For    such  a  one   tacitly  binds 
himself   to    do   nothing    injurious    or   treacherous  to  that 
state,  where  he  seeks  protection,  a  point  which  is  beyond 
all  doubt. 

III.  In  the  same  manner,  a  person  who   grants    or  re- 
quests a  conference,  gives  a  tacit  promise,  that  he  will  do 
nothing   prejudicial  to  the    parties,  who   attend   it.     Livy 
pronounces  an  injury  done  to  an  enemy,  under    the   pre- 
text  of   holding  a  conference,   a  violation   of   the  law  of 
nations. 

IV.  But  such  a  tacit  promise,  to  take  no  advantage  of 
a  parley  or  conference,  is  not  to  be  carried  farther  than 
what  has  been  said.     Provided  all  injury  and  injustice  are 
avoided,  it  is  reckoned  a  lawful  stratagem,  for  any  one  to 
avail  himself  of  a  parley  in  order  to  draw  off  the  enemy's 
attention  from  his    military  projects,  and  to   promote  his 
own.     The  device,  by  which  Asdrubal  extricated  his  army 
from  the  Ausetanian  forests,  was  of  this  kind,  and  by  the 
same  means  Scipio  Africanus,  the  elder,  gained  a  perfect 

*  The  XXIII  Chapter  of  the  Original,  on  Private  Faith  in  War,  is 
omitted  in  the  translation. — TRANSLATOR. 

C4I5) 


416  HUGO    GROTIUS 

knowledge  of  Syphax's  camp.      Both  these  circumstances 
are  related  by  Livy. 

V.  There  are  certain  mute  signs,  deriving  all  their 
force  and  meaning  from  custom;  such  as  the  fillets,  and 
branches  of  olive  formerly  used :  among  the  Macedonians 
pikes  erected,  and  among  the  Romans  shields  placed  upon 
the  head,  were  signs  of  a  suppliant  surrender  obliging 
the  party  to  lay  down  his  arms.  In  the  present  day  a 
white  flag  is  a  sign  of  suing  for  a  parley.  Therefore  all 
these  methods  have  the  force  of  express  declarations. 


CHAPTER   XXV. 
CONCLUSION. 

Admonitions  to  the  observance  of  good  faith  —  Peace  always  to  be  kept 
in  view  in  the  midst  of  war  —  Peace  beneficial  to  the  conquered  —  To 
the  conqueror — And  to  be  chosen  in  cases  where  the  issue  is  doubt- 
ful —  To  be  religiously  observed  —  Prayer  —  Conclusion  of  the  work. 

I.  HERE  seems  to    be   the    proper   place   to   bring  this 
work   to  a   conclusion,    without    in   the   least   presuming 
that  every  thing  has  been  said,  which  might  be  said  on 
the    subject:   but   sufficient  has    been   produced   to  lay  a 
foundation,  on  which  another,  if  he  pleases,  may  raise  a 
more  noble  and  extensive  edifice,  an  addition  and  improve- 
ment that  will  provoke   no  jealousy,    but  rather  be  en- 
titled to  thanks. 

Before  entirely  dismissing  the  subject,  it  may  be  neces- 
sary to  observe,  that,  as  in  laying  down  the  true  motives 
and  causes,  that  alone  will  justify  war,  every  possible 
precaution  at  the  same  time  was  taken  to  state  the  reasons 
for  which  it  should  be  avoided ;  so  now  a  few  admonitions 
will  not  be  deemed  superfluous,  in  order  to  point  out  the 
means  of  preserving  good  faith  in  war,  and  maintaining 
peace,  after  war  is  brought  to  a  termination,  and  among 
other  reasons  for  preserving  good  faith  the  desire  of 
keeping  alive  the  hope  of  peace,  even  in  the  midst  of 
war,  is  not  the  least  important.  For  good  faith,  in  the 
language  of  Cicero,  is  not  only  the  principal  hold  by 
which  all  governments  are  bound  together,  but  is  the 
key-stone  by  which  the  larger  society  of  nations  is  united. 
Destroy  this,  says  Aristotle,  and  you  destroy  the  inter- 
course of  mankind. 

In  every  other  branch  of  justice  there  is  something  of 
obscurity,  but  the  bond  of  faith  is  clear  in  itself,  and  is 
used  indeed  to  do  away  the  obscurity  of  all  transactions. 
The  observance  of  this  is  a  matter  of  conscience  with 
all  lawful  kings  and  sovereign  princes,  and  is  the  basis 
of  that  reputation  by  which  the  honour  and  dignity  of 
their  crowns  are  maintained  with  foreign  nations. 

II.  In  the  very  heat  of  war  the   greatest   security  and 
expectation  of  divine  support  must  be   in  the  unabated 

27  (417) 


418  HUGO    GROTIUS 

desire,  and  invariable  prospect  of  peace,  as  the  only  end 
for  which  hostilities  can  be  lawfully  begun.  So  that  in 
the  prosecution  of  war  we  must  never  carry  the  rage  of 
it  so  far,  as  to  unlearn  the  nature  and  dispositions  of 
men. 

III.  These  and  these  alone  would  be  sufficient  motives 
for  the  termination  of  war,  and  the  cultivation  of  peace. 
But  apart    from  all    considerations    of   humanity,  the  IN- 
TERESTS of  mankind  would  inevitably  lead  us  to  the  same 
point.     In  the  first   place   it   is   dangerous   to   prolong   a 
contest  with  a   more    powerful   enemy.     In   such   a  case 
some   sacrifices   should   be   made   for   the   sake  of  peace, 
as  in  a  storm  goods  are  sometimes   thrown  overboard  to 
prevent  a  greater  calamity,  and  to   save   the   vessel    and 
the  crew. 

IV.  Even   for    the    stronger   party,  when   flushed  with 
victory,  peace  is  a  safer  expedient,  than  the  most  exten- 
sive successes.     For  there  is  the   boldness  of   despair   to 
be  apprehended  from  a  vanquished  enemy,  dangerous  as 
the  bite  of  a  ferocious  animal  in  the  pangs  of  death. 

V.  If  indeed  both  parties  are  upon  an  equal  footing,  it 
is  the  opinion  of  Caesar,  that  it   is   the  most  favourable 
moment  for  making   peace,  when   each   party  has    confi- 
dence in  itself. 

VI.  On  whatever  terms  peace  is  made,  it  must  be  abso- 
lutely kept.     From  the  sacredness  of  the  faith  pledged  in 
the    engagement,    and    every   thing   must   be   cautiously 
avoided,  not  only  savouring   of   treachery,  but   that  may 
tend  to  awaken  and  inflame  animosity.     For  what  Cicero 
has  said  of  private  friendships  may  with  equal  propriety 
be  applied  to  public  engagements  of  this  kind,  which  are 
all  to  be  religiously   and   faithfully   observed,    especially 
where  war  and  enmity  have   ended   in   peace  and  recon- 
ciliation. 

VII.  And  may  God,  to  whom  alone  it  belongs  to  dispose 
the  affections  and  desires  of  sovereign  princes  and  kings, 
inscribe  these  principles   upon    their   hearts    and   minds, 
that  they  may  always   remember   that  the  noblest  office, 
in  which    man    can    be    engaged,  is   the   government   of 
men,  who  are  the  principal  objects  of  the  divine  care. 


INDEX 


Abandoned  property,  title  to,  107,  in. 
Acceptance  :  Necessity  of,  in  promise  to 

convey  a  right,  139. 
Acceptilation,  in. 
Accessories  to  crimes,  197,  257. 
Accomplices,  punishment  of,  256. 
Acquisitions  :  Of  property  in  war,  334  et 

seq.,  346. 

Of  dominion,  379. 
Actions  at  law:    Stipulations  as   to,    in 

treaties,  390. 
Admiralty,  146. 
Affirmations,  164,  165. 
Agency,  339,  412. 
Agents  :  Acts  of,  binding  on  principal, 

138,  139,  412. 

Agreements:   Special  and  exclusive,  101. 
Between  citizens  of  different  countries, 

136- 

Alexamlrinus,  Clemens,  52. 
Alienation:  Of  things  by  right  of  war, 

353.  389- 

Of  public  dominion,  386. 
Alliances  :  Between  states,  partnerships, 
146. 

Unequal,  158,  170. 
Allies:  Aid  to,  173. 

Word  construed,  183. 

Causes   justifying  participation  of,   in 
war,  285,  287. 

Rewards  to,  341. 
Ambassadors :   Promises  of,  binding,  139. 

Ratification  of  treaties  made  by,  167. 

Inviolability  of,  202,  204. 

Must  be  duly  accredited,  202. 

Sovereign  states  may  send,  203. 

Refusal  to  receive,  204. 

Exemptions,  205,  209,  210,  an,  313. 

Punishment  of,  for  crimes,  208. 

Passage  through  foreign  states,  209. 

Suite  and  personal  effects  of,  211. 

House  of,  as  asylum,  an. 

Debts  contracted  by,  312. 
Ambrose,  54. 
Andronicus,  24. 
Antoninus,  Marcus,  66. 
Antoninus,  Pius,  112. 
Aptitude,  19. 
Arbiter,  office  of,  398. 
Arbitration,  84,  276,  397. 
Arcifinium,  106. 
Aristotle,  19,  20,  22,  24,  61,  62,  64,  76,  118, 

120,   190,  218,  251,  268. 

Asylum,  right  of,  260. 
Augustine,  58,  74. 
Aurelius,  Marcus,  52,  68. 

Barbeyrac,  173,  392. 

Blackstone's   Commentaries,    29,    61,    86, 

100,  136,  154,  155,  156,  177,  182  —  notes. 
Bodies  politic,  privileges  of,  262. 


Boundary,  rivers  as,  107. 
Breach  of  peace,  395. 
Burial,  right  of,  213  et  leg. 
Burke,  Edmund,  282  note. 

Caduceum,  use  of,  320. 
Cicsar,  Julius,  59. 
Captures  in  war,  334,  369. 

Title  to,  335,  336,  338. 

Things  immovable,  339. 

Things  movable,  340. 

Restoration  of,  392. 
Cargo,  in  enemy's  ships,  title  to,  337. 
Cassius,  60,  74. 
Cato,  59,  77. 

Causes  of  war,  justifiable,  85. 
Chirographarii,  173. 
Chrysostom,  Dio,  25. 

Cicero,  18,  23,  24,  31,  34,  35,  60,  68,  78,  86,  89. 
92,   137,  191,  208,  214,  215,  268,  283,  317, 
379- 
Civil  law  :  Relation  of,  to  law  of  nature, 

91- 

And  interpretation  of  treaties,  194. 

Prizes  taken  from  Pirates,  357. 

Right  of  postliminium  under,  357. 
Clarigation,  319. 
Commerce,  treaties  of,  169,  170. 
Commissions:    Special,    of   ambassador, 
167. 

Variations  from,  188. 
Common  right  to  actions,  99. 
Common  right  to  things,  99. 
Community  of  goods,  86. 

Of  lands.  88. 

Compensation,  defined,  382. 
Compromise:     As   method     of    settling 

national  disputes,  276. 
Conditional  surrender,  400. 
Conference:    To    settle  disputes  of  na- 
tions, 276. 

Conqueror,  rights  of,  399. 
Conquest,  rights  resulting  from,  348,  399. 
Consent  to  conventions,  415. 
Consideration  of  contracts,  136,  138. 
Constantine,  53,  54. 
Contracts:  Expressed  and  implied,   100, 

MS- 
Between  citizens  of  different  countries, 

136. 

Consideration  for,  136,  137. 
Of  agents,  137. 
Exchange,  145,  146. 
Revocation  of,  145. 
Of  sale,  146,  151. 
Mixed,  147. 
Equality  in,  148. 
Letting  and  hiring,  153. 
Fraudulent,  199. 
Of  sovereigns,  387,  413. 
Contributions  levied  for  future  security, 
373- 

(419) 


420 


THE  RIGHTS   OF   WAR  AND   PEACE 


Conventions:  Public  and  private,  166. 

Public,  division  of,  167. 

Requiring  ratification,  167,  174,  412,  414. 

Power  to  make,  in  monarchies,  168. 

Resting  in  law  of  nature,  168. 

Of  commerce  and  amity,  169. 

Of  peace,  170. 

Obligations  of  negotiator,  174. 

Truces,  403. 

Made  by  subordinates,  411. 

Tacit  consent  to,  415. 
Corporeal  rights,  85. 
Countries,  names  of,  392. 
Creditors,  personal,  173. 
Crimes:  Principals  and  accessories,  197, 

198,  257- 
And  misdemeanors,  241. 

Damages,  196,  197,  199,  200,  388. 

Debts,  (individual,  effect  of  war  upon, 

39i- 

Deception,  innocent,  302. 

Declaration  of  war,  318,  321. 
After  truce,  not  necessary,  404. 

Defense :  A  justifiable  cause  of  war,  75. 
Right  of,  395. 

Demand  of  restitution,  319. 

Demosthenes,  74,  81,  170,  240,  310. 

Deserters :  Not  entitled  to  right  of  post- 
liminium,  355,  390. 

Dictator,  sovereign  power  of,  72. 

Dionysius,  61,  74,  98,  163. 

Disputes  of  nations,  methods  of  settle- 
ment, 276. 

Divided  and  assigned  land,  106. 

Dominion,  acquisition  of,  372. 

Duration  of  truces,  404. 

Duties:   Right  to   impose,  on   goods   in 
transit,  97. 

Duty  of  citizen  to  prevent  war,  286. 

Eliminium,  351. 

Enemies:  Furnishing  aid  to,  293-321. 

Public,  314. 

Killing  of,  325,  327,  359. 

Foreign  residents  may  become,  327. 

Property  of,  right  to  destroy,  332,  365, 
366. 

Forbearance  toward,  373. 

Good  faith  between,  379. 
Engagements,  167. 

Of  sovereigns  or  states,  387. 
Epictetus,  22. 
Equity:  A  species  of  justice,  190. 

In  interpreting  treaties,  191. 

In  matters  of  arbitration,  398. 
Euripides,  22,  78. 
Exchange,  contracts  of,  145. 
Extradition,  258,  259. 

Factors :  Acts  of,  bind  merchants,  when. 

»39.  4«- 

Faculty,  definition  of,  19. 
Falsehood,  discussed,  299  et  seq. 
Fecial  law  of  Rome,  319. 
Federal  Union,  62,  121. 
Ferae  naturae,  86. 

Rights  of  sovereign  as  to,  91. 
Fishing,  a  common  right,  101. 
Florentinus,  19,  35. 
Foreign  residents,  rights  of,  98,  327. 
Free  passage  through  countries,  right  of, 

95,97- 

Permission  first  asked,  96. 
Funeral  rites,  214. 


Galen,  33,  62. 

Good  faith,   foundation  of   all   treaties, 

385,  417- 

Goods  in  enemy's  ships,  title  to,  337. 
Government:  Change  of    form  of,  effect 
upon  debts,  121. 

Effects  on  treaties,  185. 

Mixed,  349. 

Governments,  established  for  what,  68. 
Gregory  of  Tours,  69. 
Guaranty  of  performance  by  another,  143. 

Heraclitus,  24. 
Hermogenianus,  36. 
Herodotus,  66,  68. 
Hesiod,  23,  24,  68. 
Hiring,  153. 

Homicide,  excusable,  29. 
Hostages  :  Right  to  kill,  330,  364. 
Appendages  to  treaties,  400. 

Immunity  of  Ambassadors,  202. 
Incorporeal  rights,  85,  309,  346. 

Of  a  state  lost  by  conquest,  349. 
Indemnity:  A  justifiable  cause  for  war, 

75- 

Injunctions,  170. 
Injuries  to  property:  Robbery,  81. 

Redress  for,  311. 

Amounting  to  breach  of  peace,  397. 
Insurance,  contract  of,  156,  157. 
Interest,  lawfulness  of,  154,  156. 
Interpretation:  Of  laws,  136. 

Of  promises,  137. 

Of  treaties,  176  et  seq. 

Words,  taken  in  common  acceptation, 
177. 

Words  of  art,  177,  181. 

Obscure  words,  178. 

Probable  consequences,  179. 

Context,  179. 

Motive,  180. 

Allies,  construed,  183. 

Absurd  conditions,  188. 

And  law  of  nations,  194. 

Of  peace,  389,  392,  401. 

Names  of  countries,  392. 

Josephus,  35,  50. 

Justifiable  causes  of  war,  73,  75,  85,   247, 

285- 
Justinian,  58. 

Kings,  accountability  of,  69. 
Not  all  made  by  the  people,  67. 

Lactantius,  23,  74. 

Lakes,  when  property,  90. 

L,ands  :  Three-fold  division  of,  106. 

When  considered  as  taken  possession 
of,  in  war,  336,  339. 

Postliminium  rights  of,  355. 

Waste,  90,  91. 
I,aw  :  Basis  of,  136. 

Fecial,  of  Rome,  319. 
lawful  war,  18,  31,  278,  324. 
I<aw  of  Nations,  23. 

How  proved,  25,  101. 

Voluntary,  158. 

And  interpretation  of  treaties,  194. 

Use  of  term,  296. 

Positive,  297. 

Right    to  destroy  property  of  enemy 
under,  332. 

Respecting  captures  in  war,  334,   336, 
338. 


INDEX 


421 


Law  of  nature,  22,  79, 

Relation  to  civil  law,  91. 

Civil  customs  not  part  of,  248. 

Ignorance  of,  excusable,  248. 

As  to  things  captured  in  war,  334. 
LAWS  •  Interpretation  of,  136. 

Power  to  repeal,  238. 
Letters  of  marque  and  reprisal,  278,  311. 
Letting  and  hiring,  153. 
Lie,  what  is  a,  299. 

Livy,  64,  73,  78,  114,  167,  17°.  206,  317,  332. 
Losses  of  individuals  in  war,  388. 
Lot,  as  method  of  settling  national  dis- 
putes, 277. 

Marque     and    reprisal,    letters   of,    278, 

Mediation,  84. 

Mediator,  office  of,  398. 

Money,  variations  in  value,  153. 

Monopoly,  101,  152. 

Moral  distinctions,  as  to  acts  274  et  seq. 

Mosaic  Law,  26-28. 

Not  binding  upon  Christians,  29. 
Mutius,  Quintals,  36. 

Nations,  law  of,  23. 

Voluntary,  158. 

Union  of,  rights  continue,  121. 

Restoration    of     conquered,    354,    355, 

390. 

Natural  Right,  21. 
Nature,  law  of,  unalterable,  22. 

Proof  of  existence  of,  24. 
Naval   associations:    Apportionment   of 

losses,  158. 

Necessity,  appropriation  of  property  un- 
der, 92,  93. 

Negotiation  of  treaties,  true  basis  for,  385. 
Neutral  soil:      Right  of  belligerent  to,  93. 

Captures  on,  344. 

Goods,  337. 
Neutrals,  rights  and  duties,  377. 

Oaths :  Sanctity  of,  160  et  seg. 

Meaning  of,  161. 

Validity  and  form  of,  162. 

Effect  and  substance  of,  163,  381. 

Authority  of  sovereign  over,  164. 
Obligations':    Arising  from  property,  123. 

Imperfect,  134. 

Resulting  from  injury,  195. 

Enforcing  performance  of,  287. 

Promises,  131,  135. 
Occupancy,  title  by,  90. 
Occupatory  lands,  106. 
Offenses  against  society,  punishment  of, 

258. 

Origen,  49. 
Ovid,  32. 

Pardons,  lawfulness  of,  236,  238. 
Parley,  sign  of,  416. 
Partnerships,  146. 

Trading  —  proportion    of   profits    and 

losses,  157. 
Paulus,  21. 
Peace :    The  object  of  wars,  379. 

Treaties  of,  385. 

Who  may  make,  386. 

Interpretation  of,  389. 

Breach  of,  393. 

Preservation  of,  417. 
Penal  statutes,  construction  of,  181. 
Penalties:    Remitted,  391. 

Special,  396. 

Payment  of,  effect  on  wars,  408. 
Performance  of  contract,  guaranty  for, 
143- 


Piracy,  sovereign  answerable  for,  200. 

Pirates,  treatment  of,  380. 

Plato,  75,  93,  224,  226,  229. 

Pledges  :    Appendages  to  treaties,  400. 

Redemption  of,  401. 
Pliny,  36,  254. 

Plutarch,  23,  24,  66,  93,  221,  226,  227,  235. 
Polybius,  23,  73,  208. 
Pomponius,  159. 
Ponds,  when  property,  90. 
Porphyry,  24. 

Possession:   Uninterrupted,  transfers 
property,  114. 

Of  property,  at  conclusion  of  war,  390. 

Right  of,  399. 

Posthumous  rights  to  property,  114. 
Postliminium  :    Definition  of,  169,  331. 

Right  of,  314,  336,  351,  354.  39°,  405- 

Horses,  mules,  and  ships  under  law  of, 

352.  4°5- 

Deserters,  355,  390. 

Lands,  355. 

Movable  property,  356. 

Things  useful  in  war,  356. 
Premium  of  insurance,  156. 
Prescription,  law  of,  as  applied  to  a  sov- 
ereign, 115. 

Price,  governed  by  demand,  151. 
Prisoners :    Surrender  of,  258,  259. 

Killing  of,  328,  363. 

As  slaves,  345. 

Ransom  of,  347,  410. 

Right  of  postliminium,  352,  390. 

Rights  of,  on  release,  353. 

Right  of  making,  357. 
Privateers,  200. 
Private  right,  20. 
Privileges  of  bodies  politic,  262. 
Prizes :    By  right  of  war,  337,  343,  346. 

Taken  from  pirates,  357. 
Prohibitions  in  treaties,  193. 
Promises  :  Obligation  of,  131,  135,  379,  381- 

Perfect,  135, 194. 

Interpretation  of,  137. 

Obtained  by  fraud  or  fear,  137. 

Erroneous,  137,  142. 

Valid,  138. 

Of  ambassadors,  139. 

Revocation  of,  140. 

Acceptance  of,  139,  141,  415. 

With  conditions,  142. 
Property  :    Means  of  acquiring,  103. 

Obligations  arising  from  possession  of, 
\2T>etseq. 

Alienated  by  rights  of  war,  353,  389. 

Restoration  of,  taken  in  unjust  war, 
375- 

Possession  of,   for  long  time  may  not 
give  right  of,  109,— but  see  114. 

Redress  of  injuries  to,  311,  318. 

Of  enemy,  right  to  destroy,  332, 365,  366. 

Title  to,  335,  90. 

Possession  of,  after  war,  390. 

Appropriation  of,  on  ground  of  neces- 
sity, 91,  92. 

Of  subjects,   liability  of   for  debts  of 
states,  308,  370,  387. 

Title  to,  as  between  enemies,  338. 

Use  of,  94. 

Acquisition  of,  in  war,  340. 

Captured,  369. 

Idea  of  how  established,  89. 

When  right  of,  ceases  to  exist,  117. 

Movable  and  immovable,  88,  356. 

Things  not  reducible  to,  89. 

In  lakes,  ponds,  and  rivers,  90. 

Abandoned,  107,  in. 


422 


THE   RIGHTS   OF  WAR   AND   PEACE 


Puffendorf,  193. 

Punishment :  A  justifiable  cause  of  war, 
75- 

Defined,  221. 

Who  may  inflict,  223,  226,  228. 

Object  of,  224,  226,  229,  232,  240,  247,  370. 

Under  the  Gospel,  230. 

Capital,  233. 

Wicked  acts  not  subject  to,  235. 

Proportioned  to  offense,  243  et  seq. 

Of  offenses  against  God,  249  et  seq. 

Communication  of,  upon  accomplices, 
256. 

Offenses  affecting  society,  258. 

Of  non-participants,  262. 

Of  surety,  264. 

Of  children  for  parents'  sins,  266. 

Classes  exempt  from,  362. 

Of  hostages,  364. 

Right  to  claim  property  as,  391. 

Quintilian,  24,  89. 

Ratification  of  treaties  and  conventions, 

167,  175-  4i4- 
Recovery  of  things  alienated  by  rights 

of  war,  353. 

Redemption  of  pledges,  401. 
Redress,  method  of  obtaining,  311,  318. 
Religion,  based  on  four  truths,  250. 
Remedial  statutes,  construction  of,  181. 
Reprisal :  letters  of  Marque  and,  278. 
A  method  of  obtaining  redress,  311,  312, 

327,  37°- 

Residents,  foreign,  rights  of,  97. 
Restoration :  Of  subjugated   people,  354, 

355- 

Of  property,  375,  392. 
Right :  To  movables  by  occupancy,  104. 
To  impose  duties  on  goods  in  transit, 

97- 
Common-passage    through     countries, 

95,  97,  99- 

Of  burial,  213. 

Violation  of,  301. 

Of  dominion,  acquisition  of,  379. 

Of  governors  and  governed,  19 

Of  prisoners,  353. 

Definition  and  signification  of,  18, 19,  20. 

To  actions,  99. 

Private,  20. 

Superior,  20. 

Of  asylum,  260. 

Voluntary,  25. 

Of  making  war,  386. 

Of  possession,  399. 
Rights :    Human  and  Divine,  25. 

Sources  of,  195. 

Disputed,  methods  of  settling,  276. 

Of  property,  307. 

Of  persons,  19,  307,  391. 

Resulting  from  conquest,  348. 

Arising  out  of  law  of  nations,  219. 

Real,  19. 

Of  war.  18,  332,  336,  381. 

Corporeal  and  incorporeal,  85,  309,  346- 

Of  temporary  residents,  98. 

Of  native,  92. 
River:  Effect  of  change  in  course  of,  106. 

Middle   of  boundary  between  territo- 
ries, 107. 

When  property,  90,  104. 
Robbery,  right  to  kill  robber,  81. 
Romanus,  Clemens,  52. 

Sacred  things  not  exempt  from  destruc- 
tion by  enemy,  332. 


Safe  conduct,  a,  408. 

Expiration  of,  409. 

Sales  and  purchases:    Right  of  restrict- 
ing, IOO. 

When  contract  complete,  151. 
Sallust,  206. 
Salvian,  51. 
Sea :   Open,  not  property,  90. 

Portions  of,  may  become  property,  104. 
Self-defense,  77. 
Seneca,  19,  24,  74,  75,  80,  92,  108,  118,  135, 

192. 

Services,  gratuitous,  144. 
Settlement  of  national  disputes,  methods 

of,  276. 

Sh.  ps  .  Owners  bound  by  acts  of  masters 
of,  when,  139. 

Goods  found  in  enemy's,  337. 

Under  law  of  postliminium,  352. 
Silanian,  Decree,  53. 
Slavery,  345. 
Slaves :    Prisoners  of  war,  345. 

Right  of  postliminium,  352. 
Smith,  Adam,  101  n. 
Soldiers,  compensation  to,  341,  343. 
Sovereign  power :    Not  in  the  people  in 
every  case,  63  et  teq.,  120. 

Ceases,  when,  117. 

To  declare  war,  316,  386. 
Sovereigns:    Elective  and  hereditary,  71. 

Responsibility  for  piracy  and  robbery, 
200. 

For  acts  of  subjects,'257. 

Bound  by  acts  of  commissioner,  412. 
Sovereignty :   Its  nature  and  where  it  re- 
sides, 60,  62,  70,  71,  103. 

Not  forfeitable  by  act  of  delinquency, 

80. 

Spies,  treatment  of,  when  captured,  331. 
Sponsio,  167. 
State  :   Definition  of,  25. 

Sovereign,  62. 

Conquered,  privileges  allowed  to,  374. 

Division  of,  into  constituent  parts,  by 

consent  of  war,  121. 
States:  When  immortal,  117. 

May    lose  political    existence  by  con- 
quest, 348,  349. 
States  General :  Three  divisions  of,  70,  71. 

Power  of,  71. 

Of  Holland,  337. 

Statutes :  Penal  construed  strictly;  reme- 
dial liberally,  181. 
Strabo,  62,  98. 

Stratagem,  use  of,  in  war,  294  et  seq. 
Subjects:  Of  sovereign,  detention  of,  311, 

Inability  to  attack,  in  time  of  war,  any- 
where, 327. 
Superior  right,  20. 

Supply  of*  a  thing  affects  its  price,  151. 
Surety:   Punishment  of,  264. 

Bound  by  consent,  308. 
Surrender :  Of  a  people,  in  war,  390. 

Conditional,  400. 
Sylla,  Lucius  Cornelius,  57. 


Tacitus,  64,  68,  87,  106,  no,  213. 
Taxes  on  goods  in  transit,  97. 
Terminus,  rites  of,  373. 
Territory  long  possessed,  title  to,  no. 
Tertullian,  49,  51,  52. 
Thucydldes,  60,  174. 

Time:  As  an  element  of  right  of  prop- 
erty, 109. 
Immemorial,  113. 
Transit,  goods  in,  97. 


INDEX 


423 


Treaties  :  Public  and  private,  166. 

Equal,  170. 

Unequal,  158,  170,  171,  184. 

Definition  of,  167. 

Requiring  ratification,  167. 

Power  to  make  in  monarchies,  168. 

Resting  in  law  of  nature,  168. 

Of  commerce  and  amity,  169,  170,  185. 

Of  peace,  170,  386,  389,  391. 

Renewal  of,  173. 

Effect  of  violation  of,  174. 

Interpretation  of,   176  et  seq.     (See  In- 
terpretation of  Treaties.) 

Personal  and  real,  184. 

Where  governments  change  form,  184, 
185. 

Of  peace,  material  part  of,  386. 

Stipulations  as  to  actions  at  law,  390. 

Hostages  and  pledges  under,  400. 
Truces :  Definition,  403. 

Duration  of,  404, 

Public  notice  of,  405. 

Breach  of,  406, 

Granting  of,  414 


Ulpian,  21,  34,  36,  129,  162,  166,  263,  333. 
Unlawful  acts,  305. 

Usucaption,  law  of,  as  applied  to  sover- 
eigns, 115. 
Usufruct.  155. 
Usufructuary  property,  86. 
Usury,  155. 

Valentinian,  67. 

Value  of  a  thing  governed  by  what  ?  150. 

Of  money,  153. 
Vasquez,  So,  239,  286,  388. 
Vattel,  101,  158,  167,  169,  177,  303,  297,  387. 

388  —  notes. 


War:  Definition  of,  18,  403. 

Derivation  of  word,  18. 

Division  of,  public,  private,  and  mixed, 
55- 

All,  not  repugnant  to  law  of   nature, 
34.  36. 

Private,  55,  56,  83. 

Justifiable  causes,  pretexts,  and  begin- 
ning of,  73,  75,  247,  285. 

Defense,   indemnity  and  punishment, 
75,  245- 

Time  of  beginning,  284. 

Object  of,  379. 

Effect  upon  debts,  391. 

Lawfulness  of,  18,  31,  278,  324. 

Under  divine  voluntary  law,  36,  40. 

Aid  to  parties  to,  173. 

Causes,  justifying  participation  of  al- 
lies, 285. 

Lawful  means  used  in,  290,  363. 

Use  of  stratagem,  294. 

Suspicion  of  hostile  intentions,  83. 

Injury  to  property,  85. 

Demand  of  surrender  of  citizen,  285. 

Precautions  against,  280  et  seq. 

Right  of  belligerents  to  neutral  soil,  93. 

Unjust,  causes  of,  267  et  seq. 

Avoidance  of,  280  et  seq.,  418. 

Declaration  of,  318,  321,  404,  and  forms, 
3i9- 

Right  to  make,  386. 

Losses  of  individuals  by,  388. 

Public,  formal  and  informal,  declared 
by  sovereign,  57,  316,  317,  386. 

Right  to  avert,  and  to  punish  wrongs, 

83,  200,  247,  280. 
«  Wealth  of  Nations,*  101  n. 
Withe  roam,  311. 

Wrongs  :  Division  of,  private  and  public, 
61. 

Sovereign  power  may  avert  and  punish, 
83- 

Xenophon,  32,  93. 


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